Complainant

Respondent

Anonymised Parties

An Employee

A Limited Company

Representatives

  Self.

Sheila Spokes Leman Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00036556-001

07/06/2020

The Complainant started to work for the respondent in or around May 2019. She had an interview with Mr. A. Following the interview, she was asked to wait in reception for a few minutes. Following that she was offered the position. A negotiation on her salary then took place. The Complainant asked for €60,000.00. She was offered €57,000.00 and she accepted that. She was informed by Mr A that the previous accountant was leaving on the 03.05.2019. Enquires were made in relation to the state of the accounts and the Complainant was informed that they were up to date. She soon discovered that the accounts were not up to date. She had a conversation about the state of the accounts with Mr. A when he returned from a business trip. He requested that she try to get them in order.  The Complainant said that she would but that it was outside the terms of her contract and that she would require some form of compensation for the additional work. Mr. A said he would compensate her.

The work load in relation to the accounts was enormous. There was a lot of essential information missing, which made the complainant’s job ever more difficult. She spoke to the Respondent and asked him if she could have an assistant. He said that he would and acknowledged the work that she was doing.  Again at a meeting in October she was informed how the Respondent valued the work that she was doing. Following that meeting in October the Complainant found it very difficult to get a one on one meeting with Mr. A. She wanted to discuss her compensation package as she had nothing in writing in relation to it, her contract had not been amended to reflect it nor had they ever discussed the value of the package. The Complainant’s contract did not provide for overtime either.

The Complainant wrote to Mr A on the 11th November requesting compensation for the additional work she was doing and setting out her dissatisfaction with the situation. On 18th November, the Complainant’s mother fell ill, and she had to fly to Moscow to attend to her. The Respondent was very supportive of her at that time. While she was in Moscow Mr A sent her a message on Whatsapp looking for an account. They got into a discussion about it and it ended up with the Complainant telling the Respondent that if he was not happy with her work they should part company. When the Complainant returned from Moscow, all of her passwords had been changed. She decided to leave then.

The Complainant commenced work with the Respondent as an accountant on 3rd May 2019. Towards the end of May the Complainant raised concerns regarding the organisation of pre-existing bookkeeping records held by the Respondent for the first quarter of 2019. In response to the Complainant’s concerns the Respondent installed a sage accounting software program in order to transfer the records onto an online management system. The Complainant was provided with an assistant at this time who helped her with the process.

There was no agreement and no assurances were given to the Complainant that there would be any additional payments over and above her contractual entitlements in relation to the work.

Whilst the complainant was in Moscow attending to her sick mother Mr A received a WhatsApp message from her stating that she was resigning her position. Her resignation was accepted in writing by Mr A on the 9th of December 2019.

The Respondent denies that the Complainant worked hours over and above those set out in her contract. Her contract states

“you are required to work 37.5 hours per week from 9 a.m. to 5:30 p.m. Monday to Thursday and 9 a.m. to 4:15 p.m. Friday with a 45-minute lunch break each day. Due to the nature of the business from time to time you may be required to work additional hours and you will not be entitled to any additional salary for any additional hours of work”

The complainant has been paid in full in line with her contractual terms there are no sums due and owing to the complainant by the Respondent.

The Complainant filed her claim with the WRC on the 7th June, 2020. The alleged date of the contravention was on or before the 11th November, 2020. The date the Complainant has inserted on the complaint form is incorrect. She states it was the 18th December, 2019. At that juncture she was no longer employed by the Respondent and that date doesn’t relate to anything.

The Complainant is alleging that she is owed a sum of money for additional work carried out on behalf of the Respondent which said work was over and above what was set out in her contract of employment. She filed her claim on the 7th June, 2020 stating that the payment for which she is claiming fell due on the 18th December, 2019. The Respondent states that aside from the fact that there was no agreement to pay any additional sum and that her contract does not provide for overtime, her claim, if she had one, would have to have been on a date on or prior to the 11th November 2019. That is the date that she wrote to the Respondent requesting an additional payment. In order to establish whether or not the Complaint is within time, I must first establish when, if at all, the payment was due to be paid. In that regard I note that the Complainant conceded that she did not have the agreement in writing and that no amendments were made to her terms and conditions of employment. She also accepts that no figures were discussed in relation to the alleged additional payment. Whilst the Complainant may have been unhappy about the unexpected workload and based on that felt that she deserved some form of compensation for working harder than anticipated, it is very clear from the evidence of both parties that there was no agreement to pay her an additional sum.

Section 41 (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'

“reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.  Here the test was set out in the following term;

“It is the Court’s view that in considering if reasonable cause exists it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context of which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Claimant at the material time.  The Claimant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability that had those circumstances had not been present he would have initiated the claim on time.”

 I find that there was no agreement to pay the Complainant an additional sum. Therefore, the date of the alleged contravention is not relevant and following on from that the date the complaint was filed.  Therefore, I do not have to consider S41 (6) or S41(8) as there could be no contravention upon which the statutory time limit clock would start ticking.

The complaint fails.

The complaint is not well founded and accordingly fails.

Payment of wages, contractual terms, contractual obligations, consideration.