Complainant

Respondent

Parties

Kenneth  Doyle

John Slattery And Company Limited

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-00049568-001

07/04/2022

The complainant is seeking payment for outstanding holiday pay owed to him on cessation of employment.

Preliminary Issue

The complainant explained that he attended a hearing at the WRC on 6th April 2022 in respect of a complaint lodged with the WRC on 25th May 2021 under the Terms of Employment Information Act, 1994 and the Industrial Relations Act, 1969. During this hearing he also raised the issue of unpaid holidays. He came to understand that he had incorrectly filled out his complaint form. The complainant submitted this instant complaint under the Payment of Wages Act, 1991 on 7th April 2022.

Substantive Issue

The complainant’s employment ended on 24th August 2021. He was due €3,679 holiday pay. He expected this to be paid within a reasonable period. He received several cheques from the respondent but was not clear what these payments were for. The complainant submitted that €3,000.10 holiday pay is still due to him, which he calculates as follows: €3,679 less a cheque received for €678.90 = €3,000.10 outstanding. I inquired if the sum of €3,679 was gross or net. The complainant confirmed that the holiday pay due was a gross sum of €3,679.

In July 2022, the complainant received a cheque for €2,264 but he was unsure if this was part of the holiday pay due or redress awarded following the WRC hearing of 6th April 2022.

In August 2022, the complainant received a cheque from the respondent and a pay slip. The note accompanying the cheque stated pay of €1,414.36, but the cheque was for €678.90. He did not lodge this cheque.

The complainant stated that he did not receive a cheque or payslip for €1,087.02.

The complainant does not accept the net figures on the payslips.

Preliminary Issue

The respondent obtained legal advice in respect of the complaint referred by the complainant to the WRC on 25th May 2021. He was advised that the complaint was out of time, however, as this was not accepted by the Adjudication Officer on that occasion, the respondent did not think to raise the issue of the instant complaint being out of time.

The respondent does not accept that failure to fill out the first complaint form correctly (i.e., that referred to the WRC on 25th May 2021) excuses the failure to lodge the instant complaint within the 6-month time limit required under the Payment of Wages Act, 1991, nor is it any reason to extend the 6-month time limit.

Substantive Issue

It is the respondent’s case that three cheques were issued to the complainant, and that the gross sum of €3,679 owing for holiday pay has been paid in full, less any statutory deductions required.

The respondent confirmed that the cheque issued on 22nd July 2022 for €2,264 was in respect of the redress awarded following the WRC hearing on 6th April 2022. The respondent opened a copy of the cheque, together with a copy of a note sent at the time of issue which stated: “enclosed cheque to the value of €2264.00 as agreed with the WRC”.

In relation to holiday pay due, two further cheques were issued as follows:

On 3rd May 2022   - a cheque for the net sum of €1,087.02 was issued. It was accompanied by a payslip. The payslip shows a gross payment of €2,264.64 before statutory deductions. A copy of the cheque and the payslip showing the gross and net payment were opened at the hearing. This cheque was not cashed/lodged by the complainant.

On 23rd August 2022 – a cheque for the net sum of €678.90 was issued. It was accompanied by a payslip. The payslip shows a gross payment of €1,414.36 before statutory deductions. A note sent with these documents stated that the pay was “fully and finally cleared”. A copy of this note, the cheque and the payslip showing the gross and net payment were opened at the hearing. This cheque was not cashed/lodged by the complainant.

The respondent submits that it has paid the gross holiday payment of €3,679 in full. The payslips accompanying these cheques show statutory deductions, resulting in a total net payment of €1,765.92. These figures are calculated using the company taxation software and are correct.

As neither of these cheques were cashed/lodged by the complainant, the respondent could not have known that the cheque dated 3rd May 2022 for €1,087.02 was not received by the complainant.

Preliminary Issue

Section 41(6) of the Workplace Relations Act, 2015 provides as follows:

S.41(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.

The complaint was presented to the WRC on 7th April 2022. The last date of contravention of the Payment of Wages Act, 1991 was 24th August 2021. The complaint was made outside the time limit prescribed by section 41(6) of Workplace Relations Act, 2015. However, Section 41(8) of the Workplace Relations Act, 2015 gives me the power to “entertain a complaint” if satisfied that the failure to present the complaint within the 6-month period was due to reasonable cause. Section 41(8) states as follows:

41(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 Cementation Skanska v Carroll, DWT0425, the Labour Court considered the meaning of ‘reasonable cause’ 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”.

In Globe Technical Services Limited v Kristin Miller, UDD1824, in considering if reasonable cause existed, the Labour Court noted as follows:

“It is settled law that ignorance of one's legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time”.

Has the complainant shown reasonable cause?

The complainant attended the WRC on 6th April 2022 for a hearing into a complaint lodged with the WRC on 25th May 2021 relating to the Terms of Employment Information Act, 1994 (specifically a subsisting breach of section 3 of this Act) and a dispute under the Industrial Relations Act, 1969 (which concerned a workplace incident). During that hearing, he raised the issue of unpaid holidays. He concluded that he had incorrectly filled out the complaint form by omitting to include a complaint for unpaid holiday pay. The complainant submitted a complaint to the WRC under the Payment of Wages Act, 1991 on 7th April 2022.

The complainant is relying on incorrectly filling in the form referred to the WRC on 25th May 2021 by omitting to refer a complaint under the Payment of Wages Act, 1991 in relation to unpaid holiday pay, as the basis for reasonable cause for the delay in making this complaint to the WRC. 

Given the Labour Court decisions set out above, and the facts of the case as presented, I am not satisfied that incorrectly completing the initial complaint form by omitting to include a payment of wages claim is a justifiable excuse for failure to bring the instant complaint in time. For this reason, I find that the complaint under the Payment of Wages Act, 1991 is statute-barred and accordingly, I have no jurisdiction to issue a decision on the substantive matter.

I decide that I have no jurisdiction to issue a decision on the substantive matter.

Unpaid holiday pay. Out of time. Reasonable cause.