Complainant

Respondent

Parties

John Paul  O' Brien

Alcon Laboratories Ireland Ltd

Representatives

  Self-represented

IBEC

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-00053245-001

13/10/2022

The Complainant submits that there was a shortfall in his pay, dating back to March 4th, 2021.

For completeness, the Respondent denies the Complainant’s claim and submits that the Complainant has been paid in full.

The Respondent raised a preliminary matter with respect to jurisdiction, submitting that the WRC has no jurisdiction to hear the complaint in circumstances where the alleged shortfall occurred nineteen (19) months prior to the filing of the claim.

The Respondent submits that the cognisable period, under the relevant statutory provision, is six months, which, at the discretion of the Adjudication Officer can be extended by a further six months but only if “reasonable cause” is shown. It submits that the WRC has no discretion to entertain (i.e. to hear) a complaint pertaining to something which is alleged to have occurred nineteen (19) months prior to the filing of the action; which for completeness it denies.

As per the complaint form:

The Complainant submits that the complaint being made is due to non-payment of wages by his former employer, the Respondent, during the dates 08/02/2021 to 21/02/2021. He submits that he worked in arrears as an hourly paid associate until a promotion on 04/03/2021, and then his pay moved to salary on 04/03/2021 where pay was then current.

He submits that as an hourly paid associate, he worked in arrears whereas salary-paid associates’ pay is current. He submits that he was given a 10% pay increase for a promotion to QA Manufacturing Supervisor which was back paid from 01/01/2021 by the payroll team at the request of Alcon's HR department on 04/03/2021. However, he submits that this was his first pay as a salary paid associate (current) and he submits that the team did not pay him for days worked (78 hours) between 08/02/2021 and 21/02/2021.

The Complainant submits that no payslip or work schedule for these dates link together; and that the payroll team are stating the back pay of €746.81 from his salary adjustment due to job promotion which was paid to him on 04/03/2021 covers the missing payment of €2009.62 for days worked from 08/02/2021 to 21/02/2021. However, it is his submission that as a salary paid associate (current) this payment covered days worked from 22/02/2021 to 07/03/2021 and that two weeks were missed when aligning his pay schedule with salary paid associates.

The Complainant submits the issue came to light when he ceased employment on 09/09/2022 as he was expecting two additional weeks’ payment, that he has sought to have the matter resolved internally by Alcon’s HR and payroll, with no success to date.  

The Respondent submits that the claim herein is filed under the Payment of Wages Act 1991, wherein the Complainant alleges that an unlawful deduction occurred in March 2021. The Respondent denies the claim being made.

It further asserts that the WRC does not have jurisdiction to hear this complaint as it has been made outside of the six-month statutory timeframe prescribed by the Act.

Written and oral submissions were made.

Preliminary issue arising from the Complainant’s complaint form

The Complainant asserts that he was underpaid by €2009.63 on 4th March 2021. In the “complaint specific details” section of his complaint form, he states: “complaint being made due to non payment of wages by my former employer during the dates of 08/02/2021 to 21/02/2021”.

The Workplace Relations Act 2015 sets out the following timeframe with respect to the pursuance of complaints to the Adjudicator under the Payment of Wages Act. 

(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.

The Respondent submits that the Complainant’s complaint to the Workplace Relations Commission (WRC) was lodged on 13/10/2022 and therefore, only breaches of the Act which occurred between 14/04/2022 and 13/10/2022 are within the scope of the WRC’s jurisdiction with respect to this claim. It submits that even upon an extension, the earliest date which could be in scope under the Act is 14/10/2021. Notwithstanding that no reasonable cause has been provided by the Complainant which would warrant an extension of the initial six-month period, the Complainant has clearly identified 04/03/2021 as the purported date on which an alleged breach of the Act occurred.

The Respondent submits that, for the avoidance of doubt, the Complainant’s payslips pertaining to the six months prior to the lodgement of his complaint to the WRC have been submitted. He was paid in full throughout this period. It submits that no breach of the Acts can therefore be established within the six‐month cognisable period preceding the lodgement of the Complainant’s WRC complaint.

It submits it is clear that the Complainant’s payroll continued to be processed on a current basis as the raise he received in March 2022 was processed in the same pay period as it applied. (Copy of relevant payslip submitted, which demonstrates that the raise was applicable from 21/02/2022 2022 and was paid in the same fortnight, on 03/03/2022). The Respondent submits that the supporting documentation it submitted also demonstrates that the same applied in 2019, prior to the Complainant being a salaried employee.

The Respondent submits that as the Complainant has indicated on his complaint form that the date on which he purports he should have received the payment upon which he bases his claim was 04/03/2021. Therefore, the date of this alleged deduction falls significantly outside of the cognisable period prescribed by the legislation with respect to Payment of Wages complaints. The WRC therefore does not have jurisdiction to hear this complaint.

At the hearing, the Adjudication Officer briefly adjourned the matter to consider the preliminary point raised and the exact wording of the applicable legislation.

s.6(4) of the Payment of Wages Act 1991 sets out that “A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.” (emphasis added).

s.41(6) and s. 41(8) of the Workplace Relations Act 2015 set out 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.” (emphasis added)

s.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.”

Having carefully considered the matter, and the applicable legislation, the Adjudication Officer concluded that she had no jurisdiction to entertain this complaint, submitted under the Payment of Wages Act 1991, as it pertains to a matter alleged by the Complainant to have occurred nineteen (19) months prior to the filing of the action - which for completeness, I note the Respondent is denying - even though it is the Complainant’s submission that he only became aware of the alleged unlawful deduction on 09/09/2022 and he submitted his complaint to the WRC on 13/10/2022.  

The time-limit in the legislation is determined by the “date of contravention”, which in this case has been identified by the Complainant as March 4th, 2021, and I am therefore satisfied that I have no statutory jurisdiction to entertain the complaint.

I find for the Respondent.

I must therefore conclude, in all the circumstances, that the complaint contained herein (CA-00053245-001) is not well-founded.

No jurisdiction to entertain; Out of time; Payment of Wages Act; Time limit determined by “date of contravention”;