ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00033358

Parties:

Complaint(s):

Date of Adjudication Hearing:  30/07/2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

PRELIMINARY MATTER:

The complainant states that for a period of 18 weeks during 2020 his employer unlawfully deducted wages-which corresponds to the period that his employer availed of the Temporary Wage Subsidy.

The complaint form was signed on 12th of May 2021 and registered with the Workplace Relations Commission on the 12th of May 2021

The period in dispute is as follows:

Week 13 commencing on the 2nd April 2020 through to week 26 on the 2nd July of 2020 and from week 32 on the 13th of August 2020 through to week 35 on the 3rd of September 2020.

The time period to make a complaint runs from the time of the first contravention to the last.

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 period 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 means that the time period runs from the period referenced by the complainant and in this case, this means from week 13 2020 which is the 2nd of April 2020. As the complaint was registered with the Commission on the 12th of May 2021, a period  in excess of 12 months; it is out of time and I have no jurisdiction to hear the complaint.

“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 complaints are framed with reference to a period of contravention beginning on the 2nd April 2020 and for an 18 week period, consisting of two parts,  that ends on week 35 commencing the 3rd September 2020.

The complaints are framed to relate to a period commencing on the 2nd April 2020 and the complaint was lodged with the Workplace Relations Commission on the 12th May 2021, a period greater than the statutory time period of 6 months to present a complaint and where reasonable cause exists of 12 months to present, the complaints are out of time and I have not jurisdiction to hear the complaints.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Dated:   13th January 2022

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: