Complainant

Respondent

Parties

Paul  Mannion

McDermott Laboratories Limited

Representatives

  Self-Represented

Mr Jason Murray BL instructed by Lewis Silken Ireland

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-00053963-001

29/11/2022

This matter came before the Workplace Relations Commission dated 29/11/2022.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent.  The date of the alleged deduction is 18/12/2021. The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 14/07/2023. 

Both parties provided written submissions in advance of hearing.  The Complainant filed his submission with the WRC on 26/06/2023.  The Respondent filed their submission on 12/07/2023. 

At the outset of the hearing the Respondent representative raised a preliminary objection as to jurisdiction.  In circumstances whereby this matter may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. 

The Respondent submits that the Complainant is statute-barred from bringing this complaint and that the complaint should be dismissed. 

The Respondent submits that the Complainant submitted his complaint under the Payment of Wages Act 1991 (the “1991 Act”) on 26th November 2022.  The Respondent submits the Complainant states in his complaint form that the date of deduction was 18th December 2021.  Therefore, the Complainant lodged his claim almost 12 months after the alleged contravention of the 1991 Act.   This is almost 6 months after the time-limit to file a complaint.  The Respondent submits that the Complainant’s complaint is grossly out of time and should be dismissed in its entirety. 

The Respondent submits that in order for the Complainant to succeed in an application to extend time for his complaint, he must be able to satisfy the well-established test from Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338].  The Respondent cites Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 in support of its position. 

The Respondent submits the only excuse provided by the Complainant in his submission is that he had not filed his complaint on time was due to personal circumstances. 

The Respondent submits that additionally, and of fundamental importance in considering any extension of time application, is the fact that the Complainant was in contact with the Respondent after the termination of his employment.  The Respondent submits the Complainant sought to amend his termination date for pension purposes, and was seeking this post-employment, but before lodging his complaint form.  The Respondent submits that if the Complainant was able to contact the company about his pension, there is absolutely no justifiable reason why he was not in a position to lodge the necessary complaint form within the six-month deadline while he was looking after his other administrative duties at that time. 

The following caselaw is cited by the Respondent in support of their case: 

Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338]

Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30

The Complainant accepts that the complaint under the Payment of Wages Act relates to an alleged deduction that took place almost one year prior to the referral of his complaint.  The Complainant accepts the complaint was not lodged in time.   The Complainant submits and I quote verbatim from his written submissions as follows:

“I started with my new employer in Jan 2022, my new employer’s office is directly facing my old employers office, I didn’t want any disruption in my new job so I kept quite about my grievance until I was fully established in my new role.”

On direct evidence at hearing the Complainant states he did not want to lodge his complaint until he “felt confident and secure in his new role.”   The Complainant states that his new employer is in the same building as his previous employer and they all share the same smoking shelter and “people talk” and he did not want to file his complaint until such time as he had “proved himself” in his new role. 

 CA-00053963-001

In relation to the preliminary objection that this matter is statute-barred, it is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions.  In that regard section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“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.” 

I note this complaint was referred on 29/11/2022 and the alleged contravention took place on 18/12/2021.  I find, therefore, that the herein complaint has been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act, 2015. 

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 by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after 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 complaint or refer the dispute within that period was due to reasonable cause.” 

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay. 

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.  It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  Secondly, the onus on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.  Thirdly, the court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.  It is the actual delay that must be explained and justified.  Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the proceedings. 

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. 

The Labour Court in the case of A Bank v. A Worker EDA104 stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay is an “irreducible minimum requirement.”

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] 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 context in which the expression reasonable appears it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time.  The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

For an explanation of reasonable cause to succeed –

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                 A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that reason relied upon provides a justifiable excuse for the actual delay. 

I find I am not persuaded by the explanation provided by the Complainant for the delay in submitting his complaint to the WRC.  I am satisfied the Complainant adopted a subjective position to wait until he had “proved himself” in his new job before submitting his complaint to the WRC.  The reason for the delay advanced by the Complainant does not amount to the circumstances contemplated in Cementation.   

The Complainant has not met the standard of reasonable cause set out in the Cementation case.  Applying Cementation, I find the reason put forward by the Complainant does not explain or excuse the delay; it is not a reasonable explanation; and it does not persuade me to grant an extension of time.  I find the reason put forward by the Complainant is the antithesis of what might be considered reasonable cause. 

In light of the foregoing, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a claim to the WRC under the Workplace Relations Act, 2015.  I find I have no jurisdiction to hear this complaint. 

In relation to the preliminary issue, I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time and accordingly, this complaint is not well-founded. 

I find I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I decide that the complaint (CA-00053963-001) made pursuant to section 6 of the Payment of Wages Act, 1991 is not well-founded.

Statute barred; preliminary objection; subjective reason;