Complainant

Respondent

Parties

Michael  Hayden

Manguard Plus Ltd

Representatives

  Stephen O’Donoghue

James Larkin ESA Consultants

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-00041367-001

02/12/2020

The Complainant was employed by the Respondent from 1/06/2013 until 23/07/2019 when his employment transferred under what is agreed was a Transfer of Undertakings, commonly described as a TUPE.

In February 2020, the Complainant commenced communications with the Respondent concerning overtime payments during the course of his employment with them. An offer of part payment was not accepted by him and a cheque issued to him was returned.

The Complaint referred for hearing and notified to the Respondent was recorded as received on 02.12.2020. It is the date of receipt of that complaint which gives rise to the matter of time limits under the Payment of Wages Act 1991.

On the matter of the time limit the Complainant Representative stated that a complaint under the Payment of Wages Act and the Organisation of Working Time Act were originally submitted. The WRC advised that the complaint under the Payment of Wages Act should proceed and not the one under the Organisation of Working Time Act. The implication being that the complaint would not be out of time from the date of the original complaint. In communications and in a submission, it appears that the Complainant considered that the part payment offered represented an admission of liability.

On the matter of time limits the Respondent stated that even if the time limit were extended to the maximum of twelve months the Complaint would still be out of time as it was concerned with payment of overtime while the Complainant was in employment and his employment ended on 23 July 2019. No issue was raised with the Respondent until February 2020.

WORKPLACE RELATIONS ACT 2015

Presentation of complaints and referral of disputes

41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

(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.

As explained at the hearing the fact that the complaint submitted on 02/12/2020 refers to a contravention occurring in a period of time ending over twelve months before the complaint was submitted to the WRC means that an Adjudication Officer would not have jurisdiction to hear that complaint. The hearing had no evidence of an earlier complaint being submitted to the WRC. It was however explained that where a deduction (unpaid wages) was claimed, the period of six months or the extension of twelve months would be counted back from the date of receipt of the complaint and not all of the dates claimed by the Complainant could be considered when the complaint related to unpaid overtime going back years. Neither is the starting point under the Workplace Relations Act Section 41, the date when the matter was first raised with the Respondent. Given that the matter was first raised with the Respondent in February 2020, no complaint could have been submitted to the WRC prior to that date. And as a matter of fact, correspondence continued between the parties for some months after that date thus reducing all the time the period which could have been covered by any complaint referred to the WRC.

The matter of time limits and the correct Respondent was notified to the Complainant by the Respondent in correspondence.

And even if the complaint was within jurisdiction on the matter of time limits-there is a real issue which the Complainant continues to ignore-that of the correct Respondent under TUPE. I have confined my Decision to the matter of the time limit, but this other point of jurisdiction should not be ignored. In that regard I expressly stated that I was not making any decision regarding time limits related to the other party, the Transferee.

I find that based on the matter of time limits set contained in Section 41 of the Workplace Relations Act 2015, I have no jurisdiction in the complaint.

As I have no jurisdiction to hear the complaint brought by Michael Hayden against Manguard Plus Ltd, I decide the complaint is not well founded.

Payment of Wages -Unpaid Overtime-Time Limit for Complaint