Complainant

Respondent

Anonymised Parties

A Former Employee

A Coffee Company

Representatives

John Barry Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00050017-001

28/04/2022

The complainant submitted a claim under section 27 of the Organisation of Working Time Act, 1997, on the 28th of April 2022 therefore the cognizable time period of the complaint dates from the 29th of October 2021 to the 28th of April 2022. 

The complainant submits that

She ended her employment with the respondent on the 1st of March 2022 and served 2 weeks’ notice prior to her last day. Before serving notice, she was on long term sick leave since 20th November 2020.

The complainant submits that she is entitled to holiday pay and bank holiday pay during her sick leave and has requested the company to send her her final payment payslip along with any due payment.  She has emailed the HR, Payroll, and the director on a number of occasions in relation to her payslip and last payment and is still waiting to hear back from them

The complainant also submits that the company was due to pay her 2019 - 2020 financial year bonus. The complainant submits that the company was due to pay her part of her 2019 - 2020 financial year bonus which was due in December 2020.  The complainant stated that an €18,000 bonus was agreed and was payable in 4 separate monthly payments of €4625 starting from September 2020.  She stated that the first three payments had been made but the final amount of €4,625 should have been paid in December 2020.   

The complainant contacted them on a numerous occasion and asked this final payment to be made.

The complainant submits that the company director has been extremely uncooperative on all matters since the complainant started her long-term illness back in 2020.

The respondent submits that

The respondent Limited is involved in the provision of online distribution of coffee products and the claimant was a director and shareholder of this business.

The claimant worked for a related Company, Company B, which she joined as an employee in 2015, and was responsible for administration, bookkeeping and human resources.

In 2016 the respondent was set up as a separate company with different directors and the claimant became a director of this business and was given a free shareholding.

 The respondent was exclusively focused on operating an online coffee distribution business and worked closely with Company B in the distribution of their products.

 When the company was set up, the claimant, worked also for Company B and she received wages from both companies. This was done on the basis of her normal 40-hour week working week.

 In 2020 discussions took place with the claimant regarding a salary review and increase. During the course of these discussions, the claimant requested that any pay rise be paid by The respondent. This was agreed and the claimant received an increased wage from The respondent.

During the course of 2020, naturally due to Covid, the activities of the online business grew whilst activities within Company B reduced significantly. The claimant continued to be paid in full by both companies.

Overall, the claimant worked a 40-hour week, these hours being shared between the two companies. Unfortunately, the claimant became unwell, and, in November 2020, she went on sick leave and in fact did not return to the company, resigning from the company in March 2022.

As can be appreciated, whilst during the periods of lockdown The respondent was busy, subsequent to this, the company’s activities reduced as the Company B business began to rebuild. The decline was to such an extent that in actual fact The respondent was in a loss situation.

The claimant has made a claim that she was not paid for her public holidays. As is the case under the Section 1(5) of the Organisation of Working Time Act 1997, a person is only entitled to be paid public holidays for the first 26 weeks of sickness. In the case of the claimant, she became absent due to ill health in November 2020, which meant she would have been entitled to all public holidays that fell within the course of the next six months of her absence. In this regard, this would refer to Christmas day, St Stephen’s day, New Year’s day, St Patrick’s day, Easter Monday, and May 1st

However, again, under the provisions of the Organisation of Working Time Act, any claim for payment for public holidays must be lodged with the WRC within six months of the infringement. This being the case, the last public holiday that the claimant would have been entitled to be the 3rd May 2021, which would mean a claim should have been lodged by 3rd November 2021.

This complaint was received on the 28th of April 2022 and therefore, even the most recent public holiday which the claimant would have been entitled to is excluded by the act under the six-month rule.

The claimant in her submission to the adjudicator/ WRC has also included other matters which are not covered by the claim that has been lodged.

In this regard the claimant has made a claim for annual leave which is dealt with under section (19) of the Organisation of Working Time Act and we would contend is not covered by this claim. Therefore, the company position in this regard is that as no claim has been made concerning annual leave, the matter may not be addressed under this referral.

 In the same documentation the claimant also refers to the payment of a bonus. In this regard, the company would contend that this is not a matter appropriate to the Organisation of Working Time Act and therefore is not a matter that can be dealt with by the adjudicator on this occasion under the current referral.

 The company would contend that the claim which has been made under this referral relates exclusively to the non-payment of public holidays as prescribed under section 21 of the Organisation of Working Time Act.

 The company would contend that this claim is out of time as prescribed by section 21 (5) of the Organisation of Working Time Act and we would therefore request the chairperson to rule that this claim must fail as a consequence of the application of the clear statutory time limits imposed by the Organisation of Working Time Act and also the Workplace Relations Act.

The company reserves the right to make additional submissions on the day of the hearing in relation to any of the above matters

The complainant advised the hearing that she had received a payslip in May 2022 indicating that a net amount of €1,816.35 had been paid to her in respect of 30 days annual leave outstanding and 6 public holidays.  The complainant stated that she had received the payslip but that she had never received the associated payment.   The respondent representative advised the hearing that he was unaware of this, and he undertook to look into the matter and ensure that the amount was paid to the complainant post hearing.

The respondent representative in post hearing correspondence advised the hearing that the outstanding amount of €1,816.35 had been paid to the complainant in respect of annual leave and bank holidays as set out in the payslip of May 2022.

The complainant acknowledged that the net amount of €1,816.35 had been paid to her post the hearing.  The complainant advised the Commission that the payment had been made but that she had concerns in relation to the deductions as per the payslip, given that she was no longer an employee of the respondent and so wished for the WRC to proceed with the decision in respect of her complaint.

Section 41 (6) and (8) of the Workplace Relations Act, 2015 states 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”.

These provisions are mirrored in Section 8(2) of the Unfair Dismissals Acts, 1977 wherein it states that:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause”.

The Act allows for an initial timeframe of six months within which a complaint must be lodged. It also allows for an extension of a further six months where a person was prevented from doing so due to reasonable cause.

The respondent advised the hearing that the complaint was out of time as the complainant had been on sick leave since 20th November 2020 and cited Section 1(5) of the Organisation of Working Time Act 1997 which sets out that a person is only entitled to be paid public holidays for the first 26 weeks of sickness.

The respondent advised the hearing that the complainant became absent due to ill health in November 2020, which meant she would have been entitled to all public holidays that fell within the course of the next six months of her absence. In this regard, this would refer to Christmas day, St Stephen’s day, New Year’s day, St Patrick’s day, Easter Monday, and May 1st of 2021.

The respondent drew attention to the time limits under the Organisation of Working Time Act, and specifically the provision that any claim for payment for public holidays must be lodged with the WRC within six months of the infringement.   The respondent advised the hearing that the last public holiday that the claimant would have been entitled to be the 3rd May 2021, which would mean a claim should have been lodged by 3rd November 2021 but instead she did not lodge her claim until the 28th of April 2022 and therefore, even the most recent public holiday is excluded by the act under the six-month rule.

The complainant advised the hearing that she had ended her employment with The respondent on the 1st of March 2022, and before serving notice she was on long term sick leave since 20th November 2020.

The complainant had submitted that she was entitled to holiday pay and bank holiday pay accrued during her sick leave and advised the hearing that she had requested the company to send her her final payment payslip along with any due payment.  She advised the hearing that she had emailed the HR, Payroll, and the director on a number of occasions in relation to her payslip and last payment and never heard back from them.  

The complainant also stated that the company was due to pay her part of her 2019 - 2020 financial year bonus which was due in December 2020.  The complainant stated that an €18,000 bonus was agreed and was payable in 4 separate monthly payments of €4625 starting from September 2020.  She stated that the first three payments had been made but the final amount of €4625 should have been paid in December 2020. 

The respondent advised the hearing that the final bonus was not paid in December 2020 as the company could no longer afford to pay the bonus by December 2020.

A discussion ensued as to when the complainant became aware that the bonus was not being paid.  The respondent advised the hearing that the complainant had been notified of this in December 2020 and again in March 2021 when she had attended a Board meeting where all attendees were advised that bonuses could not be paid as the company did not have the money to pay them.  The complainant submitted that this bonus should have been paid to her in December 2020.  Any claim in respect of a non-payment of a bonus due in December 2020 should have been submitted by June 2021 or if due in March 2021 a claim should have been submitted by September 2021.

The complainant in outlining the reason for the delay in submitting her complaint stated that she had suffered from severe mental health issues and that she had been an inpatient in St Patricks hospital  for a number of weeks.    

The complainant also advised the hearing that she had been trying to resolve matters herself with the company before referring a complaint to the WRC.  The respondent in response to this advised the hearing that the complainant and her husband are involved in a legal dispute on a shareholder issue with the respondent and stated that they were at the relevant time in receipt of legal advice in respect of this matter.  The respondent stated that the complainant was also engaging with them during this time in respect of payslips etc and so there was no reason why she could not also engage with the WRC or submit a claim.   The complainant advised the hearing that the solicitor she had retained was in respect of the shareholder dispute with the respondent and she stated that her solicitor did not advise her in relation to this complaint.

The respondent added that the complainant had also worked in HR in the respondent company and so should have been aware of her rights and entitlements and associated timeframes.

The complainant advised the hearing that she wasn’t aware that there was a time limit for lodging claims with the WRC as it was her first time putting in a claim with the WRC. 

The test for determining if an extension should be granted for reasonable cause was set out by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 38/2003 as follows:

 “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he/she would have initiated the claim in time.”

It is clear that the complaint in this case falls outside the period of six months.  The complainant has advanced a number of reasons to explain the delay.  I am satisfied that none of these reasons are within the parameters of ‘reasonable cause’. 

Consequently, I find that this complaint is out of time, and I declare the claim to be not well founded.

I find that this complaint is out of time, and I declare the claim to be not well founded.