Complainant

Respondent

Parties

John (Orse Sean)  Tierney

Babcock Mission Critical Services (Ireland) Limited

Representatives

  Self

Ronnie Neville Mason Hayes & Curran

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-00046865-001

27/10/2021

The complainant alleged that arising from a period of certified absence from work, the employer unreasonably refused to allow him to recommence; although, certified fit to resume duties by two medical doctors. The respondent employer stated that this arose due to the refusal to attend an aviation psychologist which they argued was equivalent to the clause in the contract where an employee was obliged to attend for medical assessment when required.

See preliminary matter

See preliminary matter

Solicitor for the respondent stated that:

“The Claimant has brought a claim under the POW Act on the basis that he did not receive salary or only partial salary was paid to him, and that he should have received a payment on 21 December 2020, the date selected by the Claimant on the claim form”

“In circumstances where the Claimant lodged the claim under the POW Act on 27th October 2021, nearly ten months after 21 December 2020, we respectfully submit that the Claimant’s complaint is outside the six-month time limit imposed by section 41(6) of the WR Act and there is no reasonable cause for extending time.”

In a supplementary submission post the hearing concerning unfair dismissal and unlawful wage deductions the complainant stated:

Stage 1

The Respondent legitimately invited the Claimant to a ‘Reflect on resignation’ meeting but then misrepresents the meeting with a non-standard ‘record of conversation’ issued 71 days after the meeting. (See Note 1 – P303)

Stage 2

The Respondent legitimately invited the Claimant to a ‘return to work’ interview but then informed him he had been singled out and selected for redundancy. (See Note 2 – P303)

Stage 3

Having failed to pressurise the Claimant to accepting redundancy, the Respondent turned to the legitimate procedure of investigating disciplinary matters but illegitimately used it as part of their coercion and exit strategy to create a sham investigation all authored by, Exit Strategist redacted at MHC. (See Note 3 – P303)

Stage 4

Once again, having failed to dismiss the Claimant, the Respondent legitimately asked the Claimant for his Class 1 medical certificate as the only condition for returning to flying duties (P182), however when the Claimant presented the certificate, the Respondent refused to accept it (P192) and created a further obstacle. Almost 5 months later the Respondent finally accepts the certifications (P268).

Stage 5

Within the employment contract the Respondent has the legitimate right to ask the Claimant to submit to an examination by a Company Doctor. However, as per the now well-established behaviour, the Respondent proposed a non-medic conduct the medical assessment and uses this position to justify with-holding salary. (See Note 4 – P304)

Stage 6

Finally, the Respondent announces on 12th May 2021 that positions at the Cork base are at risk of redundancy. This was 13 months after the Claimant was singled out and selected for redundancy. The Claimant’s salary was partially re-instated, even though the Respondent had not changed the Claimant’s status of ‘unpaid sickness absence’.

No Salary or partial salary was paid for a period of six months 21Dec20 - 21May21 inclusive. The amount indicated above is nett and therefore excludes pension contributions

The payment of wages claim detailed loss as follows:

Hogan J. in HSE v John McDermott [2014] addressed the meaning of section 6(4) of the Payment of Wages Act relating to the time to present a claim as amended by section 41(6) of the Workplace Relations Act 2015:

(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.

The construction of s. 6(4) of the 1991 Act

12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, *within the period of 6 months beginning on the date of the contravention to which the complaint relates*. The first thing to note is that no special meaning has been ascribed to the word *contravention* by the 1991 Act, so that it must be given its ordinary, natural meaning.

13. We may next observe that the actual language of the sub-section is clear, because it is the words *contravention to which the complaint relates* which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a *contravention* of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate *contraventions* of the 1991 Act during that period.

14. Yet the relevant statutory language takes us somewhat further, because the key question is the *date of the contravention to which the complaint relates.* In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention *to which the complaint relates.* As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning *on the date of the contravention to which the complaint relates*, the complaint will nonetheless be in time.

16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.

17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way.

The complaint as framed relates to a period of contravention beginning on the 21st December 2020 and continuing up to the 21st May 2021.

As the complaint is framed to relate to a period commencing on the 21st December 2020 and the complaint was lodged with the Workplace Relations Commission on the 27th October 2021, which is 10 months from the date of contravention on the 21st of December 2020, the complaint is out of time, as time runs from the 21st of December 2020 and I have no jurisdiction to hear the complaint based on these facts.

No reasonable cause has been presented to extend time as required by the Workplace Relations Act 2015 at section 41(8).

It is well settled law that a complaint must be lodged within the statutory time period; in this case 6 months and this may be extended for reasonable cause to 12 months.  In this regard Cementation Skanska v Carroll DWT0338 detailed the test to be applied when assessing if reasonable cause has been made out.  No reasonable cause has been advanced by the complainant as set out in this case. The test is an objective one and the circumstances that are relied upon must both explain why the delay occurred and that a causal link exists between the circumstances cited and the delay. That has not occurred. In those circumstances the complaint is not well founded, and I have no jurisdiction to hear the complaint.

The complaint is not well founded. I have no jurisdiction to hear the complaint as it is statute barred based on how the complaint is framed and comes before me for adjudication concerning the period 21st December 2020 until 21st May 2021.

“ In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention to which the complaint relates.”

 The complaint was lodged with the WRC on the 21st of October 2021 which is outside the 6-month period permitted to lodge a complaint. No reasonable cause has been presented that would meet the test as set out in jurisprudence to extend time. In those circumstances the complaint is out of time and I have no jurisdiction to hear the complaint.

Statute Barred