ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00032180

Parties:

	Complainant	Respondent
Parties	Peter Coyle	CC Civil Contracts Limited

Representatives

Self-represented

Did not attend

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-00041999-001	29/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015	CA-00041999-002	29/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00041999-003	29/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00041999-004	29/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00041999-005	29/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00041999-006	29/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00041999-007	13/01/2021

Date of Adjudication Hearing: 14/03/2022.

Workplace Relations Commission Adjudication Officer: Maire Mulcahy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. On this date 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 hearing 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 and to cross examine on evidence relevant to the complaint.

The complainant gave evidence under affirmation.

The respondent did not attend.

Background:

The complainant has submitted a complaint under the Payment of Wages Act 1991, two complaints under the Organisation of Working Time Act, 1997, three complaints under the Terms of Employment (Information) Act, 1994 and one complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015.

The complainant was employed as a shuttering carpenter with the respondent from 21 June 2019 to 20 March 2020.

He worked 45 hours a week. His weekly gross salary was €700.

He submitted his first set of three complaints to the WRC on 13 January 2021. He submitted four further complaints on 29 April 2021.

Preliminary Issue: Statutory time limits.

Summary of Complainant’s Case:

The Complainant’s complaint referral form was received by the WRC on13 January 2021 and identified the following three complaints:

CA-00041999-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The complainant states that the respondent failed to pay him the correct rate of pay during his employment, the last contravention being the 20 March 2020.

CA-00041999-002. Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015.

The complainant stated that the respondent breached the terms of S.I. No. 234/2019 - Sectoral Employment Order (Construction Sector), 2019 in failing to make the necessary subscriptions to enable him to secure paid sick leave as per the terms of the SEO.The last contravention occurred in 20 March 2020.

CA-00041999-003. Complaint under section 27 of the Organisation of Working Time Act, 1997.

This complaint concerns the failure of the respondent to pay the complainant his outstanding leave entitlements on the cesser of his employment on 20 March 2020.

The complainant was unrepresented. I explained that Section 41 (6) of the Workplace Relations Act 2015, dictates that complaints must be submitted within six months of the last contravention. The date of the referral of the complaint being the 13 January 2021 means that the cognisable period is the 14 August 2020 to 13 January 2021.

The instant complaints were submitted almost ten months after the contraventions identified in the complaint form.

I explained the discretion which an adjudicator can exercise by virtue of section 41(8) of the Workplace Relations Act 2015.

The Complainant requested that I extend the cognisable period to twelve months, that is from 14 January 2020 to 13 January 2021.

The complainant advised that the pandemic prevented him from submitting his complaints within the statutory time limits. He further advised that he sustained a serious injury, a leg fracture in work in his new job in May 2020, requiring surgery and hospitalisation for four days and crutches for a further two months. His doctor has still not declared him fit for shuttering and carpentry work.

He contacted the CIF in June 2020 to enquire about sick pay entitlements. They advised that the respondent had failed to make the required payments to the CIF fund for purposes of sick pay. He made many attempts to resolve it with the respondent. He contacted his union in June 2020. They contacted the respondent in June 2020 but failed to get any response. His union advised him to submit a complaint to the WRC.

He believes that these circumstances amount to reasonable cause.

The complainant submitted a second set of complaints on 29 April 2021:

CA-00041999-004 Complaint under section 27 of the Organisation of Working Time Act, 1997

CA-00041999-005. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041999-006 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041999-007. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

All of the above complaints submitted on 29 April 2021 are outside of the 12 months allowable and are accordingly inadmissible

Preliminary Issue:

Summary of Respondent’s Case.

The respondent did not attend the hearing.

Preliminary Issue:

Findings and Conclusions.

Relevant Law.

Section 41 (8) 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.”

In examining “reasonable cause”, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

“It is clear from the authorities that the test places the onus on the applicant for 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 is on the applicant to establish a causal connection 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 the complaint 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 claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The complainant’s own evidence revealed that he was on notice in June 2020 of the respondent’s failure to comply with his statutory obligations towards the complainant. The complainant was on notice in June 2020 on foot of contact with his trade union of a possible remedy via a complaint to the WRC.

While these matters may explain a delay, I cannot find that the reasons presented prevented him from submitting his complaints within the statutory time limits. I cannot find that other than for these factors (the injury and the pandemic), he would have presented the complaint on time . I am unable to find that they excuse the delay or amount to reasonable cause

I find, therefore, that I do not have the jurisdiction to investigate the complaints which fall outside the cognisable period which is the 14 August 2020- 13 January 2021.

Substantive Complaints:

Findings and Conclusions.

CA-00041999-001. Complaint under section 6 of the Payment of Wages Act, 1991.

I find that I do not have jurisdiction to hear this complaint.

CA-00041999-002. Complaint under Section 23 of the Industrial Relations (Amendment) Act, 2015

I find that I do not have jurisdiction to hear this complaint.

CA-00041999-003. Complaint under section 27 of the Organisation of Working Time Act, 1997

I find that I do not have jurisdiction to hear this complaint.

CA-00041999-004. Complaint under section 27 of the Organisation of Working Time Act, 1997

I find that I do not have jurisdiction to hear this complaint.

CA-00041999-005. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

I find that I do not have jurisdiction to hear this complaint.

CA-00041999-006. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

I find that I do not have jurisdiction to hear this complaint.

CA-00041999-007. Complaint under section 7 of the Terms of Employment (Information) Act, 1994

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(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00041999-001. Complaint under section 6 of the Payment of Wages Act, 1991.