Complainant

Respondent

Parties

Breda  Kearns

WCSE Clg t/a EmployAbility Wexford

Representatives

Jemma Mackey, SIPTU

 Gerard Heaney, Chairperson, WCSE 

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-00043976-001

10/05/2021

The complainant commenced employment as a Job Coach with the respondent on 05 October 2015.  She worked a 39 hour week and was paid €3,100 gross per month.  The complainant claims she was due to be paid an increment effective 01 July 2020, but she did not receive an increase in pay.  She submitted a complaint to the Workplace Relations Commission on 10 May 2021.

The respondent is a not for profit organisation providing support services for people with disabilities to secure and maintain employment on the open labour market.  The respondent is funded on an annual basis by the Department of Social Protection and is overseen by a voluntary Board of Directors.  The respondent’s position is that due to the funding arrangements in place the company did not have the necessary funds to award increments for any staff in 2020 or 2021.

The complainant commenced employment with the respondent on 05 October 2015.  She was employed as a Job Coach working with people with disabilities to secure and maintain employment on the open labour market. 

In 2017 the complainant requested a review of her contractual terms and conditions.  She requested the review as, when compared to other employees, she was working more hours, had less annual leave and sick leave benefits.  There was no progress on her request and as a result she sent a formal request to the Board by letter dated 20 December 2018.  She sent a further request by letter dated 19 March 2019.  The matters raised remained unresolved.  In February 2020 the complainant was advised that the yearly increment due in July 2020 could not be paid as it was not accommodated in the budget for 2020.  The complainant wrote to the Chairperson on 20 February 2020 again raising the issue of her terms and conditions and the potential non-payment of her increment on 01 July 2020.

As the funding of the respondent is provided by the Department of Social Protection the complainant wrote to her local TD and the relevant Minister seeking a resolution of the matter.  The Department replied that the terms and conditions of employment are solely a matter between the employee and employer. 

The complainant’s union representative wrote to the Chairperson of the Board of Directors on 17 September 2020 seeking a meeting concerning the non-payment of the annual increment.  The union representative wrote again on 08 April 2021 as the matter of the increment and the other terms and condition remained unresolved.  The Chairperson replied on 26 April 2021 that despite many attempts to discuss the issue with the Department the respondent had not been able to resolve the issue of underfunding.  The Chairperson also advised that the complainant now had the same annual leave as others in the company and that her hours of work would be 37 hours per week, effective from 03 May 2021. 

The complainant contends the respondent has a contractual obligation to pay the increment due on 01 July 2020.  The complainant had received increments in 2016, 2017, 2018 and 2019.  The complainant requests payment of approximately €2,300.  The complainant asserts the respondent has breached the Payment of Wages Act, 1991.

The respondent company was founded in 2004.  It is a not for profit organisation providing support services for people with disabilities to secure and maintain paid employment in the open labour market.  The service was funded by FAS until 2011 when responsibility for funding was transferred to the Department of Social Protection.

The company is now funded on an annual basis with no guarantee of future funding other than for the year mentioned in each contract for service.  Historically the pay scale for the post of Job Coach was a 9 point incremental scale and a staff member would receive a pay increase each year on the anniversary of their first date of employment.  This practice was approved by FAS and initially by the Department.  In 2019 it became apparent there was a funding problem.  At the end of 2019 the business plan for 2020 was submitted to the Department.  An additional pay allocation was required to meet the award of the increment.  This request was denied by the Department.  The respondent suggested a transfer of unused ‘non pay’ allocation to the ‘pay’ allocation by this was refused by the Department.  The respondent was forecasting a deficit at year end due to the increments awarded in 2019. 

The respondent respects the great work undertaken by all of its employees.  Due to the funding arrangements in place for the company and the current position taken by the Department of Social Protection the company does not have the necessary funds to award increments for any staff in 2020 or 2021.

CA-00043976-001

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complainant contends that under the terms of her contract of employment she was entitled to receive an increment on the 9 point scale effective 01 July 2020.  The complainant received an increment on the scale in 2016, 2017, 2018 and 2019.  She submitted a complaint to the Workplace Relations Commission on 10 May 2021 claiming €2,108 (the next increment on the scale) had not been paid to her on 01 July 2020.

Procedures and time limits for submitting complaints to the Workplace Relations Commission are provided for in section 41(6) and (8) of the Workplace Relations Act, 2015 as follows:

(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.

(7) …

(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.

The date of contravention is stated to be 01 July 2020.  The complaint form was received on 10 May 2021, outside the six months from the date of contravention.  Section 41(8) permits me to entertain a complaint presented after the six month limit if I am satisfied that the failure to present the complaint within the relevant period was due to reasonable cause.  What constitutes reasonable cause was considered by the Labour Court in Cementation Skanska v Carroll DWT0338 where it stated:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

There are two elements to be considered when deciding if the delay in presenting a complaint was due to reasonable cause.  The complainant must explain the reason for the delay in presenting the complaint and demonstrate that said reason prevented the presentation of the complaint within the six month time limit. 

The complainant raised the matter of the potential non-payment of her increment in her letter of 20 February 2020 to the Chairperson.  I accept that the complainant and her union representatives engaged in correspondence and meetings with the respondent in the following months.  The matter of the non-payment of the increment was raised formally by her union representative in letters to the Chairperson, dated 17 September 2020 and 08 April 2021.  I accept that the correspondence and engagement was intended to try to resolve the complaint, but I do not accept that such engagement prevented the complainant from presenting the complaint to the Workplace Relations Commission within the specified six month time limit. 

I find the failure to present the complaint within six months of the date of contravention was not due to a reasonable cause.  The complaint was presented out of time and therefore I find I do not have jurisdiction to entertain this complaint.

CA-00043976-001

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complaint was received by the Workplace Relations Commission on 10 May 2021.  The date of contravention of the Act was stated to be 01 July 2020.  The complaint was received outside the six month time limit for the presentation of complaints contained in section 41(6) of the Workplace Relations Act, 2015. 

I find the failure to present the complaint within six months of the date of contravention was not due to a reasonable cause.  The complaint was presented out of time and therefore I find I do not have jurisdiction to entertain this complaint.

Payment of Wages

Time limit for presentation of complaint

Reasonable cause