ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027416
Parties:
| Complainant | Respondent |
Parties | Andrzej Basiak | Classic Marquees Limited Classic Marquees |
Representatives | Charles Foley Charles Foley Solicitor | Peninsula Group Limited |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00034965-001 | 28/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 | CA-00034965-002 | 28/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00034965-004 | 28/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00034965-005 | 28/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012 | CA-00034965-006 | 28/02/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00034965-007 | 28/02/2020 |
Date of Adjudication Hearing: 24/01/2022
Workplace Relations Commission Adjudication Officer: Anne McElduff
Procedure:
In accordance with Section 41 of the Workplace Relations Act [2015-2021] following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to present any relevant evidence. This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. The Complainant was represented by Mr Eoin O’Donnell BL instructed by Charles Foley Solicitors. The Respondent attended and was represented by Mr Gavin Cumiskey of Peninsula.
The adjudication hearing commenced on 15/2/21, resumed on 28/9/21 and concluded on 24/1/22. At the outset I drew the parties attention to the implications of the Supreme Court decision in Zalewski V Adjudication Officer and WRC [2021] IESC 24 and I note the WRC had done likewise prior to the hearing. In the course of the adjudication hearing, the parties were afforded fair procedures including the opportunity to question and cross examine. Evidence was taken on oath/affirmation. An interpreter was also in attendance and was administered the oath/affirmation.
In the course of the adjudication hearing the Complaint confirmed he was withdrawing the following complaints:
- - CA-00034965-001 – pursuant to Section 45A of the Industrial Relations Act, 1946
- - CA-00034965-002 – pursuant to Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 – S.I. No. 507 of 2012
- - CA-00034965-006 – pursuant to Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 – S.I. No. 507 of 2012
All sworn oral evidence and documentation received by me has been taken into consideration.
Preliminary Matters:
At the outset there was reference to settlement discussions – however the Adjudicator clarified these were solely a matter for the parties.
The Respondent objected to the hearing proceeding on the basis that the complaints were out of time and cited case law in support of its position including Health Service Executive V John McDermott [2014] IEHC 331. The Respondent stated that the Complainant was employed from 10/3/2015 to 22/8/2019, that his Complaint Form was received by the WRC on 28/2/20 and that at the relevant time he was receiving legal assistance from his Solicitor. With regard to the latter, the Respondent referred to a Personal Injury action the Complainant was pursuing. The Respondent submitted that failure on the Complainant’s Solicitor’s behalf to lodge the complaint on time, did not amount to “reasonable excuse”. The Respondent also stated that the Complainant had worked in Ireland for a number of years.
The Complainant confirmed he resigned from the Respondent’s employment on 22/8/2019. He accepted that his complaint was lodged outside the six month time limit but argued there was reasonable cause for this as his first language was not English and consequently his English was poor and there was a language barrier. This he claimed led to a misunderstanding as to when his employment ended. Further, the Complainant stated he had difficulties dealing with formal matters through English including communicating with his Solicitor and that he did not have legal knowledge. The Complainant urged “sympathy and discretion” to be used to extend the time limit.
I advised the parties that I would hear the complaints in full and reserve my decision.
Background:
The Respondent is engaged in the business of setting up marquees for various events. The Complainant was employed as a General Labourer/Marquee Erector/Driver from 2015. He stated that he worked 50 hours per week. The Complainant has brought a number of complaints as outlined below. These are disputed by the Respondent on the basis that they are out of time and are without merit. |
Summary of Complainant’s Case:
CA-00034965-004 The Complainant stated that there were unlawful deductions from his wages. The Complainant referred to a time when he was on sick leave and then he went on the PUP payment. He stated that he was owed €118.83 in respect of unlawful deductions and referred to various documents setting out his hours and pay. The Complainant also stated that he did not get paid for working bank holidays, that he was owed 7.8 bank holidays and for unpaid annual leave – which amounted to €886.60. The Respondent cross-examined the Complainant on this evidence and in response the latter stated that whilst he could not remember exact dates in relation to owed bank holidays or annual leave he was underpaid – though he accepted he had received payments during periods he was not working. CA-00034965-005 The Complainant stated that he was not paid in accordance with the National Minimum Wage Act [2000-2020]. In this regard he stated that he was owed €188.83. Under questioning by the Adjudicator, the Complainant stated that he had not requested the Respondent to provide a written statement of his average hourly rate of pay for any pay reference period. The Complainant also accepted that he was in fact paid the minimum wage by the Respondent in 2019. CA-00034965-007 The Complainant re-stated his evidence in relation to non-payment for bank holidays and annual leave and that he was owed €886.60 this regard. |
Summary of Respondent’s Case:
CA-00034965-004 The Respondent denied that it had made any unlawful deductions from the Complaint’s wages and that if anything the Complainant was overpaid. The Respondent further stated that the Complainant had not particularised his complaint in terms of specifying the dates or individual amounts of any alleged unlawful deductions or the alleged periods of time in question. The Respondent also disputed the complaints in relation to bank holidays and annual leave and stated that the burden of proof was on the Complainant in relation to setting out the details of these claims. In this regard, the Respondent stated that the Complainant could not identify any bank holidays when he was allegedly not paid. The Respondent further stated that the Complainant accumulated annual leave and got paid for this during the days/months when there was no work for him e.g. during winter time. CA-00034965-005 The Respondent objected to evidence being adduced in relation to this complaint on the basis that it was out of time. The Respondent also denied the complaint. CA-00034965-007 The Respondent stated that the Complainant had not particularised his complaint in terms of specifying the basis for his claim that he was allegedly owed €886.60 in respect of annual leave and bank holidays. |
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Findings and Conclusions:
I have given careful consideration to the submissions and sworn oral evidence. In the first instance, I must decide if I have jurisdiction to hear these complaints which depends on whether I decide the complaints have been made within the prescribed time limit. In this regard, Section 41(6) of the Workplace Relations Act [2015 - 2021] provides that: “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.” Section 41 (8) of the Act provides that: “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.” I note that the Complainant confirmed at the adjudication hearing that his employment with the Respondent terminated on the 22nd August, 2019. The documentation clearly shows that his Complaint Form was received by the WRC on the 28th February 2020 – at least 6 days after the expiry of the prescribed six months time limit. As already outlined, Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay. In relation to the matter of reasonable cause, the Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 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.” In the case of HSE and Dr Abdul Rauf [Determination No. FTD0817], the Labour Court stated that “A Complainant…..must also demonstrate that there are reasons but for which the case would have been referred in time” (emphasis added in bold). In the present case, the Complainant has relied on his lack of legal knowledge and lack of proficiency in the English language. Whilst I have no reason to doubt the Complainant’s position in this regard, nonetheless, he has not presented me with any evidence that there was any change for him with regard to these two factors from the date of his resignation up to the 22nd February 2020 or more particularly, during the period between the 22nd and 28th February 2020 or indeed at any time in the six months after the 22nd February 2020. In this regard, the Complainant lodged his complaint with the WRC on the 28th February 2020 but in my view he has not demonstrated that his circumstances with regard to the English language, his legal knowledge or his ability to communicate with his Solicitor were any different on that day than from any of the days previous. Accordingly, I cannot accept that there was anything new or particular about these reasons which explain or excuse the delay in the Complainant lodging his complaint within the six month time limit or which would allow me to say that “but for” these reasons the complaints would have been lodged on time. Further, even if the Complainant’s language ability led to a misunderstanding on his part as to when his employment ended – as claimed by him – he has not presented me with any evidence that such misunderstanding persisted from August 2019 until beyond the 22nd February 2020. I also note that the WRC’s website contains translations of many documents relevant to bringing complaints. In all the circumstances and having carefully considered the evidence available to me, I find that the Complainant has not shown reasonable cause to allow me extend the deadline for submission of his claims by a further six months as provided for at Section 41(8) of the Workplace Relations Act [2015 – 2021]. In light of this finding I make the below decisions. |
Decision:
Section 41 of the Workplace Relations Act [2015 – 2021] requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00034965-001 - Withdrawn CA-00034965-002 - Withdrawn CA-00034965-004 - This complaint has been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act [2015-2021]. Accordingly, as I do not have jurisdiction to determine the matter I deem the complaint not well founded. CA-00034965-005 - This complaint has been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act [2015-2021]. Accordingly, as I do not have jurisdiction to determine the matter I deem the complaint not well founded. CA-00034965-006 - Withdrawn CA-00034965-007 - This complaint has been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act [2015-2021]. Accordingly, as I do not have jurisdiction to determine the matter I deem the complaint not well founded. |
Dated: October 26th 2022
Workplace Relations Commission Adjudication Officer: Anne McElduff
Key Words:
Time Limit; Annual Leave, Public Holidays, Minimum Wage, Unlawful Deduction |