FULL RECOMMENDATION
PARTIES : LARKIN UNEMPLOYED CENTRE LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00001093 CA-00001789-001 The Complainant worked for the Respondent under a Community Employment, ‘CE’, scheme on rolling contracts from 2007. In May 2015, the Complainant’s weekly pay was reduced from €542.84 per week to €501.08 per week. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’. The Adjudication Officer, ‘AO’, held that the complaint was not well founded. The Complainant appealed to this Court. This appeal is one of a number under this Act and other legislation involving the two parties. A first hearing identified that it would be preferable for all cases involving these parties to be taken together. At a second hearing, a preliminary issue of law was raised. The parties agreed to make submissions on this point of law and agreed also that the cases could then be determined based on submissions received rather than requiring further hearings. Preliminary Issue The Respondent’s representatives raised with the Court the question as to whether the Court had jurisdiction to hear the appeal, citing the case ofHSE v. McDermott (2014) IEHC331,in which the High Court had set out the principles for this Court in determining if a complaint under the Act was taken within the six months’ cognisable period for which the Act provides. The following is a summary of the submissions on this preliminary issue. Summary of Complainant arguments on preliminary issue. The complaint was submitted on 24 December 2015. The date from which an unlawful deduction was claimed was 1 May 2015. However, when the matter came to the WRC, it was on the basis that the claim was being limited by the Complainant to the relevant 6 months period. This is standard practice with the relevant AO as a preliminary point. However, that is not set out in the Decision and it is accepted, therefore, that there is an issue. Summary of Respondent arguments The complaint was submitted outside the six months’ period provided for in s.6 (4) of the Act. The complaint, therefore, is statute barred. The applicable law Workplace Relations Act 2015 41. 6) Subject tosubsection (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 insubsection (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. Deliberation No argument was made either to the AO or to this Court that there was reasonable cause to extend the 6 months’ cognisable period. There is tacit acceptance in the submission on behalf of the Complainant that the complaint was not submitted in time. The Court concurs with this. The complaint was not submitted in time. The Court does not have jurisdiction to consider the substance of the appeal. Determination The Decision of the Adjudication Officer is upheld, albeit for different reasons.
NOTE |
