Complainant

Respondent

Parties

Gerard  Huban

Denis Moriarty The Kerries Ltd

Complainant

Respondent

Representatives

  Self- represented

 Colma Fahy Solicitors. Mr Ross Gorman, BL

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-00045147-001

12/07/2021

The complainant submits that the respondent made an unlawful deduction of €22,638 from his wages on 22/12/2017, contrary to the provisions of the Payment of Wages Act, 1991.

The complainant was employed as a quantity surveyor with the respondent from 5/9/2016 to 22/12/2017.

His gross weekly wage was €961.

He submitted his complaint to the WRC on 12 July 2021.

Statutory time limits.

The respondent points to section 41(4) of the Workplace Relations Act, 2015  which means that the complaint is statute barred.

The respondent also refers to a High Court Order of 3/5/2018 which dealt conclusively with any outstanding debt owed to the complainant.

The complainant submits that there were a few reasons which prevented him from submitting his complaint within the statutory time limits.

Firstly, the respondent director repeatedly told the complainant that he would pay all monies owed to him. The last time this reassurance was given was the 16 April 2019. He did not state the amount. The respondent also told him to await the report of the Examiner. However, the Examiner advised the complainant date that he was categorised as an unsecured creditor because he did not have a contract of employment.

Secondly, as the respondent denied that that the complainant had a contract of service, the complainant submitted an appeal to the scope section of the Department of Social and Family Affairs on 17 July 2019. On 22 July 2021 they confirmed his status as an employee. The complainant contends that this is the date from which time should run.

The complainant submitted his complaint to the WRC on 12 July 2021 concerning a contravention of the Act of 1991 which occurred on December 2017. The limitation period provided by the Workplace Relations Act, 2015 is found at Section 41(6).lIt 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”.

Section 41 (8) addresses the discretionary power of adjudicators to extend time. It states:

 “(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 test for determining reasonable cause was formulated in Cementation Skanska and Carroll DWT0338 in the following terms: -

“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.

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.”

This determination refers to a situation where the adjudicator may consider an appeal to extend time for a further six months.

The request before me is to extend time for a period of three and a half years.

There is nothing on the Act of 2015 which extends time while he status of the complainant as an employee is awaiting determination in another forum. I also note that the complainant was in receipt of legal advice around the time of the Examinership in 2018.

I cannot find, therefore, that the reasons presented prevented the complainant from submitting his complaints within the statutory time limits.  I cannot find that these factors (the unrealised assurances of the respondent which failed to materialise over a period of two and a half years, and the appeal to the Scope Section of the Department of Social and Family Affairs) excuse the delay.

 I find, therefore, that I do not have the jurisdiction to investigate the complaints which fall outside the cognisable period which is the 23 June -22/12/2017.

I find I do no not have jurisdiction to investigate this complaint.

I decide that I do not have jurisdiction to address this complaint.

Statute- barred complaint.