Complainant

Respondent

Parties

David O'Brien

Aghadoe Hospitality Limited

Representatives

Terence F. Casey & Company, Solicitors

Irish Business & Employers’ Confederation

Act

Complaint Reference No.

Date of Receipt

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

CA-00039871-001

16/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00039871-002

16/09/2020

The complainant commenced working as a trainee manager in the Aghadoe Heights Hotel in Kerry in July 2002.  He became an assistant manager in May 2004 and when he resigned in March 2020, he was a senior assistant manager and he earned an annual salary of €42,341.  His complaint for consideration here is that he is owned money in respect of additional hours worked in every year from 2015 until the year he resigned. 

On March 12th 2020, the complainant wrote to the general manager confirming his decision to resign:

“I would like to wish you the very best of luck in steering Aghadoe Heights through this difficult time and we can discuss a 6/8 week leaving period with the last 3 to 4 of those weeks as holiday pay.”

On March 16th, the general manager, Mr Penderleith replied as follows:

“As discussed, you have 10.51 days of annual leave accrued which you have requested to use as part of your notice period and the company has agreed to this.  In addition, you have confirmed that you would like to be paid in lieu of your notice which means your last working day will be Sunday 15th March 2020.  I can confirm your final pay will be made up of 20 days’ notice, 5 bank holidays and 10.51 days of annual leave.”

In the respondent’s written submission in advance of the hearing, two preliminary issues were raised:

1.  The complainant has not provided particulars of his complaints. 

2.  These complaints were submitted to the WRC on September 16th 2020.  The complainant finished working for the respondent exactly six months previously on March 15th 2020.  The time frame during which I can consider a breach of the Payment of Wages Act and the Organisation of Working Time Act is limited to the six months prior to the submission of the complaints and is therefore confined to the period from March 17th to 20th when the complainant was not at work.

1.  The Complainant has not Provided Particulars of his Complaints

On the e-complaint form he sent to the WRC on September 16th 2020, the complainant provided the following narrative under the heading of the Payment of Wages Act 1991:

“I am owned 1188 hours that I worked and did not get paid for.”

Under the heading of the Organisation of Working Time Act 1997, he stated:

“I have not received my holiday entitlements in full.”

No further evidence was submitted.  On October 30th 2020, a case officer from the WRC wrote to the complainant’s solicitor seeking further particulars.  Mr O’Connor replied as follows:

“Please note my client should have been paid on a weekly basis up to the date of the termination of his employment.  Therefore the loss is not on one particular day but on each weekly date of payment until the date of termination.”

At the hearing, the complainant said that he worked between 100 and 200 additional hours every year from 2015 until 2020.  In 2018, he said he worked 210 extra hours and in 2019, he worked 251 extra hours.

He has no access to the documents on which these hours were recorded.

2.  Time Limit for Submitting a Complaint

Section 41(6) of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication:

“…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.”

An extension of time is provided for at subsection 8 of this section:

“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.”

It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” an extension of the time limit from six months to 12 months for submitting a complaint may be permitted.  No application has been made for an extension of the time limit.

Finding on the Preliminary Issues

It is apparent from the complainant’s evidence at the hearing that his complaint about the non-payment of wages is related to additional hours that he claims he worked in the years prior to his resignation on March 12th 2020.  With regard to his claim under the Organisation of Working Time Act, at the hearing, he said that his holiday pay may be correct.

The respondent’s position is that the complainant was paid an annual salary to include additional hours when necessary. 

These complaints were submitted on September 16th 2020 and it is apparent that they relate to a claim for additional hours going back some years before the complainant left his job on March 15th 2020.  As he submitted these complaints to the WRC six months after he resigned, apart from the lack of detail regarding the allegation of unpaid hours and holiday pay, I have no jurisdiction to conduct an enquiry into a breach of legislation which is alleged to have occurred more than six months before the complaints were submitted.

I decide that I have no jurisdiction to adjudicate on these complaints because they have been submitted outside the legal time limit prescribed at section 41(6) of the Workplace Relations Act 2015.

Complaints have been submitted out of time.