ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034626
Parties:
| Complainant | Respondent |
Parties | Erin Porter | Café Depèche |
Representatives | Not represented | John Powell, Solicitor |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045669-001 | 15/08/2021 |
Date of Adjudication Hearing: 25/04/2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on August 15th 2021 and, in accordance with section 41 of the Workplace Relations Act 2015, it was assigned to me by the Director General. Due to restrictions at the WRC during the Covid-19 pandemic, a hearing was delayed until April 25th 2022. I conducted a remote hearing on that date, at which I gave the parties an opportunity to be heard and to present evidence relevant to the complaint. Ms Porter represented herself and Café Depèche was represented by Mr John Powell, Solicitor. The owner of Café Depèche, Mr Humphrey Porter attended the hearing and gave evidence. While the parties are named in this decision, from here on, I will refer to Ms Porter as “the complainant” and to Café Depèche as “the respondent.”
Background:
The complainant is a student and she worked in the respondent’s café during her summer holidays from school and from March to December 2020, during the Covid-19 lockdown. In breach of section 5 of the Payment of Wages Act 1991, she claims that she got no wages for work done between March 24th and her last day in the café, December 11th 2020. On behalf of the respondent, Mr Powell raised the fact that, as this complaint was submitted on August 15th 2021, more than six months after the complainant left her employment in the café, it is outside the limit for which I have jurisdiction to conduct an enquiry. As a preliminary issue therefore, I must consider if there was reasonable cause for the delay and if I can extend the time limit to 12 months. |
The Complainant’s Explanation of the Reason for the Delay:
The café where the complainant worked is owned by her father and, although she was paid when she worked during her school holidays, she said that she didn’t get any wages when she worked there in 2020. The complainant lived with her father until December 11th 2020, when she left her job and went to live with her mother. She didn’t submit a complaint about not being paid any wages while she was employed for nine months in 2020, and when she left, she said that her mother advised her against submitting a complaint. In the months after she left her job, she said that she wasn’t “in the right head space” to make a complaint. She said that she has seen how her father reacted to similar issues and that she didn’t want to risk his anger. In August 2021, when she submitted this complaint, she said that she did so “for closure.” In her evidence, she said that she “needed to report it.” |
Findings on the Preliminary Issue of the Time Limit:
The established test for deciding if an extension of time should be granted is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338. In this case, the test for reasonable cause for extending the time limit to 12 months was set out as follows: “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.” It is clear therefore, that, for an explanation of “reasonable cause” to succeed, § The complainant must explain the delay and afford an excuse for the delay; § The explanation must be reasonable; § There must be an objective standard, applied to the circumstances of the case; § There must be a causal link between the circumstances and the delay; § The complainant must show that, if the circumstances were not present, she would have submitted the claim. While the complainant said that she wasn’t in the “right head space” to submit a complaint after she finished working in her father’s café in December 2020, it is difficult to see how this went on for more than six months. During that time, she wasn’t living with her father and she had the support of her mother. In February 2021, she started in a new part-time job and she was attending college at the same time. While the complainant said that she was fearful of her father’s reaction if she made a complaint, she had no contact with him after she left her job in his café, and she said that, until the day of the hearing, she saw him only once, and that was a chance meeting on a public street. She didn’t say what had changed to lessen her fear and she didn’t point to anything significant that occurred in August 2021 to improve her emotional state, apart from a sense of wanting “closure.” She submitted no evidence that she was ill and unable to give her attention to making a complaint. As part of the reason that she didn’t make a complaint within the six-month timeframe, the complainant said that her mother advised her against doing so. While it is understandable that she followed her mother’s advice, it is not reasonable to reject the same advice later and to seek redress when the time limit has expired. It is my view that the complainant’s explanation that she didn’t feel able to make a complaint on time because she was emotionally fragile is not a reasonable explanation for the delay. Many employees faced with the prospect of having to seek redress are very stressed out at the prospect of doing so, but they fill in the form on time. It appears that the complainant was well enough to start in a new job in February 2021 and I am satisfied that there was no impediment to her submitting a complaint before the expiry of the time limit on June 11th 2021. I find that the explanation provided by the complainant for the delay submitting her complaint is not persuasive and that she has not met the standard of reasonable cause set out in the Cementation case to persuade me to grant an extension of time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have no jurisdiction to adjudicate on this complaint because it has been submitted outside the time limit prescribed at section 41(6) of the Workplace Relations Act 2015. |
Dated: 10th May, 2022
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Complaint submitted outside the six-month time limit. |