Complainant

Respondent

Parties

Gavin  McCarthy

Waterford Castle Hotel & Golf Club Ltd.

Representatives

  Gavin McCarthy

Neil Breheny Neil J Breheny & Co.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042252-002

01/02/2021

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

CA-00042252-003

01/02/2021

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

CA-00042252-004

01/02/2021

The complainant was employed as a Food and Beverage Manager with the respondent company from 01 May 2019 to 02 February 2020.  In his complaint form he stated he worked a 60 hour week and his annual salary was €38,000 paid weekly.  The complaints relate to alleged changes to the terms and conditions of employment, deductions from salary on 04 February 2020 and non-payment of salary.  The complaints were submitted to the Workplace Relations Commission on 01 February 2021.

The complainant was employed as a Food & Beverage Manager with the respondent company.  He commenced employment in May 2019. 

The complainant in his complaint form submitted the following complaints:

1.       The employer deducted money from his salary for rent.  This was never a term or condition of employment, it was unilaterally introduced by his employer without his consent.

2.       The employer made unlawful deductions from his wages for rent on 04 February 2020.

3.       The complainant was not paid for time in lieu as agreed verbally with the CFO.  He claims he is due payment for 390 hours.

The complainant’s case is that it was agreed he would be provided with accommodation for which he would not have to pay rent.  This agreement was not contained in the written contract, but he stated was agreed verbally.  Charging rent was a change unilaterally introduced by the respondent without the complainant’s consent.  The respondent unlawfully deducted an amount for rent from his salary on 04 February 2020.

The complainant claims he had a verbal agreement to receive Time Off in Lieu (TOIL) when he worked more than 48 hours in a week.  He claims he did not receive time off and when his employment terminated in February 2020 he should have been paid for 390 hours worked.

Preliminary Issue

The respondent submitted that the Adjudication Officer has no jurisdiction to deal with any of the three complaints submitted as they were submitted outside the time limit for such complaints.  The complainant’s employment ended on 02 February 2020 and these complaints were submitted to the Workplace Relations Commission on 01 February 2021. 

The complaint had made several earlier complaints against his former employer which he then withdrew on the day of hearing.  As such the complainant was aware of his entitlement to bring a claim against his former employer and the necessity to bring such claims within the time limits specified.

Claims

The respondent refutes each of the claims made by the complainant.

CA-00042252-002

The respondent furnished the complainant with his contract of employment.  The terms were never varied to the extent that a new contract or additional terms required to be furnished.

CA-00042252-003

The respondent deducted from the complainant’s final pay an amount due by the complainant to the respondent in respect of accommodation provided to him by respondent company.  The contract of employment, at paragraph 7, provides for deductions from pay of sums owed by the employee to the employer.

CA-00042252-004

The complainant was given the entirety of his entitlements, including accrued holiday pay and notice entitlement.

Preliminary Issue

The complainant submitted one claim under the Terms of Employment (Information) Act, 1994 and two claims under the Payment of Wages Act, 1991. 

The time limits within which complaints may be submitted for adjudication are contained in Section 41 of the Workplace Relations Act, 2015 as follows:

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.

41 (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The three complaints in this case were submitted one year after the complainant’s employment with the respondent ended.  The complainant acknowledged he had submitted other complaints against the respondent and that on advice he had withdrawn those complaints.  He stated he was not fully aware of his entitlements and that the delay was because he was waiting for the outcome of the earlier complaints, which he withdrew.  He stated he was advised by a solicitor to put in these complaints and he was aware that sometimes a lay litigant is accommodated.  He stated he wanted to close the first case before he submitted the three complaints in this case.  The complainant was not represented at the hearing.

Clearly these three complaints were submitted outside the time limit provided in Section 41(6), that is 6 months beginning on the date of the contravention to which that complaint relates.  Under Section 41(8) of the 2015 Act I am permitted to entertain a complaint after the expiration of 6 months, but not later than 6 months after such expiration, if I am satisfied that the failure to present the complaint was due to “reasonable cause”.  What constitutes reasonable cause was considered by the Labour Court in Cementation Skanska v Carroll DWT0338 where the Court stated the following:

“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.” …..

“The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.”

Applying the above test, it is for the complainant to explain the delay in submitting these complaints and to provide a reasonable excuse that prevented him from submitting his complaint within time. 

I have carefully considered the complainant’s reasons why he submitted these complaints well outside the normal time limit.  I do not accept that the complainant was not fully aware of his entitlement to bring complaints against his former employer.  He had in fact submitted earlier complaints within time.  At some point he had the benefit of some legal advice.  The complainant withdrew the earlier complaints on the day of the hearing.  He subsequently submitted these three complaints one year after his employment with the respondent ended. 

I am satisfied that the complainant was aware of the time limit within which he should have submitted his complaints and that he took a chance on submitting them out of time.  There was nothing to prevent the complainant submitting multiple complaints within the correct time limit.  I do not accept as a reasonable excuse that the complainant wanted to close his first case before submitting these complaints, it is simply not credible.  I find the complainant has not provided a reasonable excuse for the delay in submitting these complaints. 

These complaints were submitted out of time and the complainant did not provided any reasonable excuse for his delay in submitting them which might permit me to entertain such complaints outside the normal 6 month limit.  Therefore, I find I do not have jurisdiction to adjudicate on these complaints.

CA-00042252-002

Complaint submitted under Section 7 of the Terms of Employment (Information) Act, 1994

The complaint was submitted out of time.  I am satisfied that the failure to present the complaint within the permitted 6 month period was not due to a reasonable cause.  Therefore, I do not have jurisdiction to adjudicate on this complaint.

CA-00042252-003

Complaint submitted under Section 6 of the Payment of Wages Act, 1991

The complaint was submitted out of time.  I am satisfied that the failure to present the complaint within the permitted 6 month period was not due to a reasonable cause.  Therefore, I do not have jurisdiction to adjudicate on this complaint.

CA-00042252-004

Complaint submitted under Section 6 of the Payment of Wages Act, 1991

The complaint was submitted out of time.  I am satisfied that the failure to present the complaint within the permitted 6 month period was not due to a reasonable cause.  Therefore, I do not have jurisdiction to adjudicate on this complaint.

Time Limit

Reasonable Cause

Extension of Time