ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034410
Parties:
| Complainant | Respondent |
Parties | Roger Bejenaru | Kedington Ltd. |
| Complainant | Respondent |
Representatives | Self- represented | CIF |
Complaint(s):
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-00045486-001 | 30/07/2021 |
Date of Adjudication Hearing: 24/01/2023
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.
I gave the parties an opportunity to be heard, to present evidence relevant to the complaints and to cross examine witnesses. Three witnesses gave evidence under affirmation for the respondent. The complainant gave evidence under affirmation.
The respondent was represented by the CIF. The respondent HR Manager, Payroll Manager, Senior Account Manager and Project Manager were also in attendance.
The complainant was self-represented.
Background:
The complainant has presented a complaint that the respondent unlawfully deducted the sum of €7361 on 20/12/ 2019, contrary to the provisions of the Payments of Wages Act, 1991, (“The Act”) The complainant was employed as a technician in the respondent IT infrastructure provider company from the 17/8/2017 until his resignation on 27/8/2021. He earned €707 gross, €574 net per week. He submitted his complaint to the WRC 30/7/2021.
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Preliminary issue: time limits
Summary of Respondent’s Case:
Preliminary Points: The respondent submits that this pay claim is statute barred by virtue of Section 6.4 of the Payments of Wages Act, 1991 and Section 41(6) of the Workplace Relations Act 2015. The alleged deduction happened in December 2019; this claim was received by the WRC on the 30th of July 2021. Section 41(6) of the Workplace Relations Act 2015 provides that, “…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.”
Section 41(8) of the Act allows for an extension of six months where “reasonable cause” for same exists The complaint was lodged nineteen months after the contravention. The respondent relies on Globe Technical Services Limited v. Kristin Miller, UDD1824, where the Labour Court noted:
“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.”
Without prejudice to the respondent’s preliminary point, the respondent denies that any wrongful deduction was made from the complainant’s wages. The complainant is wrongly claiming ownership of a tax rebate to the amount of €7361 that was paid to the respondent so as to offset the tax paid by the respondent in respect of the complainant’s earnings while on a company assignment in Denmark.
The respondent requests that the adjudication officer finds that the complaint is unfounded.
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Preliminary issue: time limits
Summary of Complainant’s Case:
The complainant in addressing his obligations under section 41(8) of the Act, states that he deferred submitting the complaint because he was waiting for the respondent to return to him with information. He needed to understand what tax had been deducted from him and why the respondent retained a tax rebate which he maintains was due to him. Also, he was waiting for the WRC to respond to him on his complaint under the Employment Equality Act. 1998.He was not aware of the Irish laws or his legal rights and was not aware of the WRC until a friend mentioned it to him. He wanted to settle the matter amicably. He asks the adjudicator to allow jurisdiction and admit the complaint. |
Preliminary Issue:time limits.
Findings and Conclusions
Relevant Law. Section 41 (8) of the Workplace Relations Act 2015 addresses the discretionary power of adjudicators to extend time. It provides as follows: “(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 statute is clear. The outer limit within which I can exercise discretion and allow jurisdiction is 12 months from the date of the contravention. The infringement is stated to have occurred on 20/12/2019. The complaint was lodged on 30/7/2021, eight months beyond the outer jurisdiction which the WRC may exercise. I find that I do not have jurisdiction to hear this complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that I do not have jurisdiction to hear this complaint. |
Dated: 25/07/2023
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Failure to comply with statutory time limits. |