Complainant

Respondent

Parties

Ian Millar

Des Kelly Carpets Sallynoggin Limited

Representatives

Anthony McIntyre, Independent Workers’ Union

Barry O’Mahony, BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00043260-001

26/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00043260-002

26/03/2021

The complainant is an upholsterer and carpet binder and he commenced working for the respondent on February 16th 2015.  On June 2nd 2020, during the first lock-down of the Covid-19 pandemic, he was given notice of redundancy.  His employment ended on June 26th.  In breach of sections 9 and 10 of the Protection of Employment Act 1977, the complainant claims that his former employer failed to consult with him and his colleagues when more than five employees were made redundant in June 2020.  In breach of the Payment of Wages Act 1991, he claims that his employer failed to pay him commission on work done in October 2019, when his contract of employment provided for the payment of commission. 

As a preliminary matter, the respondent ’s position is that, as they were submitted to the WRC on March 26th 2021, I have no jurisdiction to consider these complaints because they have been submitted outside the six-month time limit set out at Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 and at section 41(6) of the Workplace Relations Act 2015.

CA-00043260-001:  Complaint Regarding Failure to Consult about Redundancy

At the hearing, the complainant said that, at the time he was made redundant, he broke up with his girlfriend and he was living in his mother’s house with his four-year old son.  He was looking for somewhere more suitable to live with his son and he said that he wasn’t in the right frame of mind to deal with the redundancy issue.  He was also pre-occupied with setting up his own business.  On the date of this hearing on April 22nd 2022, the complainant said that was now working for himself as an upholsterer and that his business was going “okay.”  He continues to look after his son and he is still living with his mother.

Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 provides that a complaint must be submitted within six months of the date of the alleged contravention.  If I am satisfied that exceptional circumstances prevented the submission of the complaint in the first six months, I may extend the time limit to 12 months.

It is apparent from the complainant’s evidence that, at the time he was made redundant, he was looking after his young son, and, to his credit, he continues as his son’s main carer.  Nothing occurred in the first six months after the termination of his employment which points to a reason why he could not have submitted a complaint shortly afterwards.  His circumstances did not change in the six months after the expiry of the time limit, and no exceptional circumstances were alleviated to enable him to submit a late complaint.

Having considered the complainant’s application for an extension of the time limit, I am not satisfied that his circumstances were so exceptional, that he could not have submitted a complaint within six months of the date of his redundancy.

CA-00043260-001:  Complaint Regarding Failure to Pay Commission

Section 41(6) of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication:

“…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.”

An extension of time is provided for at subsection 8 of this section:

“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.”

It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” an extension of the time limit from six months to 12 months for submitting a complaint may be permitted. 

On October 23rd 2019, the respondent withheld commission of €150 from the complainant.  As this breach of the complainant’s contract of employment occurred more than one year before this complaint was submitted to the WRC on March 26th 2020, it is outside the time limit prescribed at section 41(8) of the Workplace Relations Act and I have no jurisdiction to conduct an enquiry.  This matter has been investigated separately by me as an industrial relations dispute and I have issued a recommendation on the issue under section 13 of the Industrial Relations Act 1969.

CA-00043260-001:  Complaint Regarding Failure to Consult about Redundancy

I have no jurisdiction to adjudicate on this complaint because it has been submitted outside the time limit of six months prescribed at Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

CA-00043260-001:  Complaint Regarding Failure to Pay Commission

I have no jurisdiction to adjudicate on this complaint because it has been submitted outside the time limit of 12 months prescribed at section 41(8) of the Workplace Relations Act 2015.

Complaints have been submitted outside the time limits.