ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033096
Parties:
| Complainant | Respondent |
Parties | Kevin Keane | Trustwater Limited (in Liquidation) |
Representatives | Self-represented. | Myles Kirby – Kirby Healy Chartered Accountants |
Complaint:
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-00043611-001 | 15/04/2021 |
Date of Adjudication Hearing: 30/08/2021
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. As the Respondent is subject to a High Court Winding-up Order, the appointed Liquidator appeared in its place. The Liquidator agreed to a correction of the record regarding the true name of the Respondent, which is reflected above.
Background:
The Complainant worked for the Respondent as an Engineer for approximately 10 years up to March 2015 when he was made redundant. He submits that he is owed €8,265.03 net in wages for 5 weeks pay prior to the termination of his employment. The Respondent submits that the Workplace Relations Commission (WRC) does not have jurisdiction to hear the claim on two grounds: (1) The Complainant submitted his complaint outside of the statutory time limit under the Payment of Wages Act 1991 and (2) the complaint fell within a section of the Companies Act 2014 where the WRC has no jurisdiction. |
Summary of Respondent’s Case:
Preliminary Issues: The Respondent company was placed into Provisional Liquidation on 16 February 2016 on foot of a winding up petition presented by Revenue on 27 January 2016. The Respondent’s representative was appointed Official Liquidator by White J. of the High Court on 18 March 2016. The Respondent submits that the Complainant was an employee from 18 September 2006 to 2 March 2015. His role was made redundant over before the appointment of the liquidator. Time Limits: The Respondent submits that the complaint relates to events in March 2015, but the Complainant lodged his claim on 15 April 2021, over 6 years after the end of his employment, which is significantly outside the statutory time limit. Jurisdiction under the Companies Act 2014; The Respondent submits that without prejudice to its position on time limits, the nature of this complaint falls outside the jurisdiction of the WRC. The Complainant’s issue is based on the quantification of his preferential dividend under Section 621 of the Companies Act 2014. The Respondent submits that the WRC has no jurisdiction to resolve disputes about the ranking or quantification of preferential claims under Section 621 of the Companies Act 2014 which falls within the exclusive jurisdiction of the High Court. |
Summary of Complainant’s Case on Preliminary Issues:
The Complainant submits that he was not aware of the time limits required under the Payment of Wages Act 1991 (the Act). He further submits that it was his belief that the pursuit of his wages from the Liquidator as a preferential creditor, and an adjudication on such matters, was a matter for the WRC. |
Findings and Conclusions:
Section 6 of the Payment of Wages Act 1991 deals with the decision of adjudication officer under section 41 of Workplace Relations Act 2015, in its relevant part, as follows:
A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances…
The Workplace Relations Act at section 41(6) and (8) sets out the time limits for submission of claims under the Payment of Wages Act 1991 as follows: (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… (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 above sections provide that the complaint should be presented within the period of six months beginning on the date of the contravention to which the complaint relates. The claimant submits that his claim for five weeks unpaid wages relate to five weeks before his redundancy on 8 March 2015. His complaint was submitted to the WRC on 15 April 2021 which is considerably outside of the time limit for submission of a claim. I therefore find that I do not have jurisdiction to hear the complaint. I conclude that under this circumstance there is no need for me to consider the Respondent’s second preliminary issue of jurisdiction under section 621 of the Company Act 2014. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the submission of the complaint was considerably out of time under the Payment of Wages Act 1991 therefore I do not have jurisdiction to hear the complaint. |
Dated: 13th September 2021
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Payment of Wages Act 1991, Time Limits. |