Complainant

Respondent

Parties

Anne Marie Cassidy

Airfield Estate DAC

Representatives

Self-represented 

Declan Groarke, Lewis Silkin Ireland

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-00050213-001

03/05/2022

The complainant is an accounts assistant and she joined the respondent organisation in April 2016.  She worked for 32 hours a week and her annual salary was €37,000.  Between April and August 2020, arising from the impact on businesses during the Covid-19 pandemic, the respondent availed of the government’s Temporary Wage Subsidy Scheme (TWSS) and a portion of the complainant’s wages were paid from this Scheme.  The complainant claims that the way in which the respondent topped up the TWSS resulted in a reduction in her gross salary in 2020.  She said that, because of this grievance, she resigned in February 2022. 

Opening his submission for the respondent, Mr Groarke said that, as this complaint was submitted to the WRC on May 3rd 2022, and, as the alleged contravention of the Payment of Wages Act occurred between April and August 2020, the complaint has been submitted outside the six-month time limit prescribed at section 41(6) of the Workplace Relations Act 2015.  Evidently, it is also outside the extended time limit of 12 months which may be permitted if the complainant can show reasonable cause for the delay.

On September 1st 2022, in response to a request from the WRC to explain her reasons for the delay, the complainant replied: “The six months is for a complaint after leaving a job, not while still employed.”  Clearly, the complainant was mis-informed or mistaken in this regard, because section 41(6) of the Workplace Relations Act 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.

On the form she submitted to the WRC on May 3rd 2022, the complainant said that she was advised in 2020 that her wages would be unaffected by the closure of the Airfield Estate.  In that year, she said that her gross earnings should have been €37,000, but her end of year P21 statement from the Revenue Commissioners shows that her gross pay was €34,121.71, of which, €7,467 comprised the TWSS subsidy.  The complainant said that she received her normal net salary but that there is a shortfall of €2,878.29 in her gross wages.  It is evident therefore, that the very latest date on which the complainant can show that she was aware of the difference in her gross earnings between 2019 and 2020 was December 2020; although as someone employed in a finance role, it is likely that she was aware of the discrepancy during the period when the TWSS was availed of by the respondent, between April and August 2020. 

It is clear from section 41(6) of the Act quoted above, that a complaint may only be considered if it is presented before the expiration of six months after the date of the alleged contravention.  Taking December 31st 2020 as the possible latest date of contravention, the time limit expired on June 30th 2021. 

Section 41(8) permits an extension of the time limit to 12 months:

“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 six months after such expiration) as the case may be, if he or she is satisfied that the failure to present the case or refer the dispute within that period was due to reasonable cause.”

The complainant did not seek an extension of the time limit and, even if an extension was granted, this brings the time limit for submitting the complaint to December 31st 2021.  As her complaint was submitted to the WRC on May 3rd 2022, 16 months after the latest date on which the alleged contravention occurred, it has been presented four months after the expiry of the extended time limit.  I find therefore that, due to the expiry of the time limit, I have no jurisdiction to adjudicate on this complaint.

While I am without jurisdiction to decide on this matter, I have had cause to consider the application of the TWSS scheme in previous hearings and, for the benefit of the parties, I wish to make some brief remarks about the application of the scheme and its effect and gross and net pay.

The Emergency Measures in the Public Interest (Covid-19) Act 2020 was enacted on March 27th 2020 to mitigate against the adverse economic consequences arising from the spread of Covid-19.  Part 7 was concerned with putting in place a temporary wage subsidy scheme to support employers to keep their staff employed in the context of a closure or downturn in their businesses. 

Section 28(2) provides that an employer may be eligible to apply for the TWSS where,

“(a) the business of an employer has been adversely affected by Covid-19 to a significant extent with the result that the employer is unable to pay to a specified employee the emoluments the employer would otherwise have normally paid to him or her,

(b) notwithstanding the existence of the circumstances referred to in paragraph (a), the employer has the firm intention of continuing to employ the specified employee (and to pay to him or her emoluments accordingly) and is making best efforts to pay to the employee some of the emoluments referred to in paragraph (a) during the applicable period, and

(c) the employer has satisfied the conditions specified in subsection (4).”  (These conditions refer to the employer’s submission of certain returns to Revenue.)

This section provides that, where there was a downturn in a business due to Covid-19 and / or, where employees were not as fully occupied as they were before the pandemic, an employer may have been eligible for TWSS support and these payments may have been topped up so that an employee’s wages were a combination of TWSS and pay from the employer.  The guidance notes on www.revenue.ie state that the combination of TWSS payments and the employer’s top-up may not exceed 100% of normal weekly net pay.  Logic would dictate that, unless otherwise agreed, an employee who is occupied to the same extent that they had been before the pandemic, would receive their normal net weekly wages.  At the hearing, the complainant said that she did the same work during the pandemic when the Estate was closed that she did before the pandemic.  The complainant was paid monthly and her normal monthly net pay was unaffected.

On the form she submitted to the WRC, the complainant noted that her gross salary in 2020 was €34,121.71, of which €7,467 came from the TWSS.  At the hearing, she accepted that her net pay was unaffected and that she received the same net pay in 2020 that she received in 2019, when her gross salary was €37,000.  It was a condition of the TWSS scheme that an employee should not be paid more than their normal net pay, and, as the TWSS portion of the complainant’s wages was not taxed at source, the effect of the subsidy was that the complainants’ gross earnings for 2020 were reduced by €2,878.  The application of the TWSS and the calculation of the top-up payment to the complainant was in accordance with Revenue’s rules and guidance notes.  While her gross annual salary was reduced by €2,878, there was no effect on her net pay, and this was in accordance with the rules of the TWSS scheme.

I have concluded that this complaint was submitted to the WRC more than 16 months after the expiry of the 12-month extended time limit within which a complaint must be presented for adjudication.  I decide therefore, that I have no jurisdiction to adjudicate on the complaint.

Expiry of the time limit for submitting a complaint