ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034411
Parties:
| Complainant | Respondent |
Parties | Mr Kevin Lynch | Mount Wolseley Hospitality Ltd t/a Mount Wolseley Hotel and Golf Club Ltd |
| Complainant | Respondent |
Representatives | Self-Represented | Ms. Judy McNamara of IBEC |
Complaint(s):
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-00045496-001 | 02/08/2021 |
Date of Adjudication Hearing: 10/05/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties.
Full cross examination of Witnesses was allowed and availed of.
Unfortunately, due to Covid 19 difficulties, the publication of the Adjudication finding was delayed.
Background:
The issue in contention was an alleged Deduction in Wages from the Complainant, a Green Keeper at a Hotel Resort / Golf Club. The Employment began on the 6th October 1996. The actual date of ending of employment, if ended at all, was disputed. The rate of pay was stated by the Complainant to be € 663.00 per 40 hour week. |
1:1 Opening Legal Points / Time Limits / Jurisdiction
1:1:1 Respondent case
The Respondent Advisor , Ms. McNamara of IBEC , opened proceedings by stating that the Adjudication Officer had no proper jurisdiction as the Complaint was clearly “Out of Time”. She referred to Section 41 (6) and Section 41 (8) of the Workplace Relations Act,2015.
(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.
(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.
In this case the Complaint form was received by the WRC on the 2nd August 2021. The Complainant stated that the Wage shortfall/deduction had happened on the 23rd May 2020.
Under Section 41 (6) counting six months backwards from the 2nd August 2021 six months would have been the 2nd of February 2021and a further 6 months (if allowed for reasonable cause ) would have been the 3rd August 2020. The alleged contravention ( 23rd May 2020 ) was accordingly some 14 months and 11 days before the date of lodging the claim. Accordingly the complaint was entirely out of time.
1:1:2 Complainant response
The Complainant referred to his ill health and the entire Covid situation during the period. Considerable correspondence and contacts between the parties had taken place. The failure to lodge the complaint “in time” was largely due to a general unfamiliarity with WRC procedures and the hope that the issues would resolve locally due to ongoing contacts.
1:2:3 Adjudicator Decision
The case was the subject to considerable Oral evidence.
However the inescapable fact was that the complaint was 14 months out of time. There was no arguable case made in relation to adjusting the date of the alleged contravention – the Complainant was effectively off payroll since that date.
Accordingly ,irrespective of the merits/demerits of the substantive case , the Adjudication has to be deemed “ out of time”.
2: Findings and Conclusions:
For the reasons stated in Section One above the Complaint is Out of Time as per Section 41 of the Workplace Relations Act,2015. The Adjudication Officer has no proper jurisdiction to proceed. Accordingly, the Complaint has to be deemed to be Not Well Founded. |
3: Decision:
CA: 00045496-001
Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.
The Adjudication has not got proper jurisdiction as the Complaint it is Out of Time.
It is accordingly deemed to be Not Well Founded.
Dated: 19/09/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Payment of Wages , Out of Time. |