FULL DECISION
SECTION 44, WORKPLACE RELATIONS ACT 2015 PARTIES: THE GRESHAM HOTEL DIVISION:
SUBJECT: Appeal of Adjudication Officer Decision No's: ADJ-00042851 (CA-00053422-001) DECISION: This is an appeal by Arturas Kononovas (the Complainant) against a Decision of an Adjudication Officer ADJ-00042851, made under the Payment of Wages Act 1991 (the 1991 Act), against his former employer The Gresham Hotel. The Adjudication Officer found that the Complainant did not establish that any unlawful deduction occurred, and that the complaint was not well founded. The Complainant lodged an appeal to the Labour Court on 28 July 2023. Position of the Complainant It is the Complainant’s case that he accumulated 542 hours in lieu of extra hours worked over the period of his employment with the Respondent. He commenced employment as a Sous Chef on 27 September 2017, and his contract of employment provides for time in lieu. He undertook hours at short notice when asked to do so and understood that he would be paid for those hours as time off in lieu or as wages. He resigned his position with effect from 2 June 2022. At that point the hotel on-line clock-in system recorded that he had accumulated 542 hours in the Lieu Bank. The Complainant cannot establish when or what extra hours he worked during his employment. He seeks compensation for the loss of his 542 Lieu Bank Hours, which he accrued over the course of his employment.\ Position of the Respondent It is the Respondent’s case that no unlawful deduction of wages occurred. In May 2022, the Complainant queried his entitlement to “holiday hours and days in lieu” and the Respondent confirmed that he had accrued 10 days holidays. The Complainant then queried his entitlement to “approximately 540 lieu hours” recorded on Time Point System and sought to be paid for these hours. The Complainant was asked to provide details of any dates that he felt he was owed hours. The Respondent undertook a review of the Time Point System, which records time and attendance, to confirm if any lieu time was owed to the Complainant. The investigation identified that figures provided on the system were incorrect, as it was erroneously adding additional hours to the lieu balance. The error in the system was subsequently fixed. The investigation established that the Complainant was paid his contractual entitlement for all hours worked, with corresponding pay slips confirming his payments. The Respondent explained to the Complainant that the figure on the clock-in system was incorrect and that he was paid correctly for any additional hours worked. The Complainant was in fact overpaid by 10 hours, although the Respondent did not seek to claim this overpayment. At no point was the Complainant paid below his contractual salary. In his final pay slip, he received compensation for outstanding annual leave and public holidays. No breach of legislation occurred, and that the Complainant received all payments owed to him.
The Applicable Law The relevant statutes to the within appeal are the Workplace Relations Act 2015 and the Payment of Wages Act 1991. Section 41 of the Workplace Relations Act, 2015, sets out provisions in relation to time limits for lodging complaints at first instance and provides as follows: “(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.” Section 5 of the Payment of Wages Act 1991 provides as follows: (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless– (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.
(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion. Decision The Workplace Relations Act 2015 at section 41(6) specifies the time limit that applies for lodging complaints under certain employment rights enactments, including the Payment of Wages Act 1991. That provision specifies that a complaint cannot be entertained by an Adjudication Officer, or by the Labour Court on appeal, unless it is presented “after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. In other words, the 2015 Act requires that to ground a claim under the Payment of Wages Act a complainant must set out specific contraventions of the Act that occurred in the six-month period before lodging a claim. The six-month timeframe may be extended by a further six-month period if the failure to present the complaint in time was due to reasonable cause. In this case, the Complainant lodged his complaint to the Workplace Relations Commission on 25 October 2022. No application was made to extend the timeframe by a further six months for reasonable cause. Accordingly, the cognisable period is confined to the six-month period from 26 April 2022 to 25 October 2022. As the Complainant resigned his employment on 2 June 2022, the relevant period for consideration by the Court when ascertaining what alleged contraventions of the Act occurred, is the period from 26 April 2022 to 2 June 2022, when the Complainant’s employment ended. At the hearing the Complainant’s representative confirmed that he was not able to identify any contraventions of the Act that occurred during the cognisable period for the complaint, or indeed at any time during the Complainant’s period of employment. As the Complainant has failed to identify or provide any evidence of a contravention of the Act, he has not established any legal basis for his claim. As no evidence was submitted that the Complainant received less than the wages properly payable to him during the relevant period for his complaint, his complaint under the 1991 Act must fail. Decision Accordingly, the decision of the Adjudication Officer is upheld. The Court so decides.
NOTE Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary. |
