Complainant

Respondent

Parties

Patrick  Harrington

Speedex Same Day

Representatives

Appeared In Person   

 No Appearance by the Respondent on either day of hearing

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055834-001

30/03/2023

On 30 March 2023, the complainant a former driver at the respondent business submitted a complaint under Section 6 of the Payment of Wages Act, 1991.

On May 12, 2023, the Respondent wrote to the WRC and rejected the claim.

The case was scheduled for hearing on 29 September 2023 in Cork.

On 25 September 2023, I wrote to the complainant seeking any submissions he wished to tender, but none were forthcoming.

The Respondent did not appear at hearing or send a representative. I waited 20 mins in case of his unexpected delay, but he remained a “no show “.

I pressed on and worked with the complainant, who was understandably aggrieved not to meet his former employer.

The Complainant, a lay litigant gave evidence under oath and undertook to furnish a pay slip as documentary linkage to his former employment.

Shortly after completion of the hearing, I received a call from WRC Administration, which alerted me that the Respondent had called there requesting to be heard in the matter.

It appears that he conveyed that he had missed the notification of hearing letter and was first alerted to the hearing via the copy of the 25 September 2023 letter to the complainant.

I gave the matter some thought and decided that this may well have been an honest mistake and in the interest of fairness and justice, I sought a resumed hearing.

I wrote the following letter to the parties as a result.

I write in follow up to the hearing commenced at 10.15 am on September 29, 2023. I allowed 15 mins for the Respondent Mr Barry to arrive.

There was no appearance by or on behalf of the Respondent and I proceeded to swear you in as a witness in your own case.

I explained that the WRC had not heard from the Respondent outside of the May 12, 2023, letter which I addressed with you at hearing.

I concluded the hearing at 11 am.

Shortly after this time, I received a call from the Central WRC Administration, who had taken a call from the Respondent to say that he had not received notification of hearing.

He was alerted to today’s hearing when he received a copy of the letter, I sent to you dated 25 September 2023.

I asked whether he was available this morning, as I was conscious you had taken the day off. I was informed that he was travelling from Dublin and was unavailable.

The Respondent has requested to be heard in the case.

 I have decided that in the interest of fair procedures and the anomaly in the Employers legal title (it needs to be amended on consent) I have requested to resume the hearing for one hour at the earliest possible date.

You will remain under oath during this interval.

I will open the hearing by giving a summary of the evidence already adduced on:

1 Statutory Time Limit

2 Substantive case

I will ask you if you wish to add anything in evidence on either or both points.

Mr Barry will be permitted to cross examine you on your evidence.

Mr Barry will then be requested to give his evidence and produce any witnesses in the case. You will be permitted to cross examine him.

I will then ask clarifications.

Both parties can make closing statements.

I look forward to welcoming the parties back to hearing, which I have scheduled for a 1-hour slot.

I apologise for having to invite you back, but as I explained, if substantial reasons arise during the 5 days post hearing, I have grounds to recall the parties in the interest of fair procedures.

I prevail on both parties to submit any relevant paperwork in advance of the resumed hearing.

Pay slips are awaited from the complainant as proof of employment.

I will copy this letter to the Respondent for information and action.

Yours sincerely,

Both parties were notified of the resumed hearing commencing at 9.15 am on November 3, 2023, on 29 September 2023.

On this occasion, the complainant was the sole attendee, and the Respondent did not file a submission or explain his reason for nonattendance.

The Complainant worked as a Driver at the Respondent business from 19 June 2017 to his resignation on 29 August 2022. It was the complainant case that on resignation from his position on 29 August 2022, that he was left short 4 days annual leave and claimed €400 .00 in unpaid wages.

Preliminary Issue (Time Limits)

The complainant made application to extend the time and gave evidence that he felt very badly following his resignation and needed time to come around and relaunch into a job he is now happy in. He submitted that he is very troubled by the unfinished business of the claim and apologised for being late. He was very focussed on being heard in the case and he believed his claim had been wrongly overlooked by the company.

Substantive Case:

The complainant gave evidence that he had been very committed to his job but had become disenchanted with the role. He gave evidence of a verbal altercation that led to his resignation.

He said that he was disappointed that the Respondent did not acknowledge his disappointment.

The Complainant submitted that he had not been provided with a contract of employment but was clear that a system of allocation of annual leave had prevailed at the company since his start date.

This involved a top up of time off around Christmas:

1 day extra over first 3 years

2 days extra for next two years.

This was a verbal and casual arrangement, but it was universal.

The Complainant sought to square off his leaving payments, but found a difficulty in obtaining 4 remaining days, which emanated from the verbal agreement.

The Respondent refuted the presence of this Agreement.

When requested to comment on the Respondent letter of May 12, 2023, the Complainant named the driver who had first alerted him to the availability of these extra days, which he had availed of during his employment.

He accepted that he had received all that was owed to him bar the 4 days, which he quantified as €400.00.

The Complainant exhibited a pay slip which listed Speedex Delivery Limited as the Employer and a Bank Statement which listed Speedex Same Day as the employer. When asked to clarify, he explained that the latter title was the title he was employed under, but the first named employer came into being much later.

The Complainant sought to recoup €400 in unpaid wages as accrued but untaken annual leave on the conclusion of his employment.

The Respondent filed a rebuttal of the claim on 12 May 2023.

Mr Aidan Barry for the Company wrote that he had sought to validate the claim made by the complainant for unpaid holidays on the cessation of his employment and found that he had been over paid.

While the complainant raised that a separate arrangement had been in place over Christmas every year, he could not attribute an authority for this to anyone at the business. Mr Barry disputed the arrangement.

Mr Barry stated that he had checked with the staff on whether time off at Christmas was treated separately and all confirmed it was not.

He wrote “What I find more surprising is why this topic didn’t surface annually, I f I can be of any further assistance, please advise “

There is no appearance by or on behalf of the Respondent at either day of hearing.

I have been requested to make a decision on this claim for unpaid wages in the form of annual leave accrued but untaken at the conclusion of employment.

My jurisdiction falls under Section 5 of the Payment of Wages Act, 1991.

Preliminary Issue, Time Limits.

I must first decide on whether the claim is within time? that is if the jurisdiction set down in section 41(6) of the Workplace Relations Act, 2015

 Section 41(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.

Some discretion in equity is permitted to me to extend the time on reasonable cause.

(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 Complainant has submitted that he was left short in his final pay packet on 9 September 2022, which he attributes as the date of contravention.

He fully appreciated that his claim was lodged outside of the parameters allowed in Section 41(6) of the Act, however, he stated that he felt severely negatively affected by the manner in which his employment concluded and that his “head was all over the place “He did not provide medical evidence for the delay.

The Complainant was fervent in his application to extend time to encapsulate the claim. He said that it was a matter of much importance to him and was “unfinished business “

This claim was lodged on 30 March 2023 and refers to a date of contravention of 9 September 2022. The claim should have been lodged on or before 8 March 2023 to be in time.

I must have regard for the date of the contravention to which the complaint relates HSE and Mc Dermott [2014] IEHC 331

In this case that is 9 September 2022, which renders the complaint outside of section 41(6) of the Workplace Relations Act 1991.

I must now give consideration to whether I can extend the time limit in accordance with section 41(8) of the Act.

The seminal case on this is Cementation Skanska and A Worker at the Labour court DWT 0425. The Court set out the test to be applied.

The complainant must show reasons which both explain the delay and afford an excuse for the delay.

There must be a causal link between the circumstances cited and the delay.

I must also consider whether the respondent has suffered prejudice by the delay and whether the complainant has a good arguable case?

I have considered the evidence adduced in this case, all of which was uncontroverted due to the absence of the respondent on both hearing days.

I found a complainant who believed that he had been wronged and sought to be heard. I have reflected that he is indeed a lay litigant, with no knowledge of conflict resolution procedures. I could not establish the presence of a contract or staff handbook at the employment.

He requires closure in this long running dispute.

I would have preferred to have been provided with medical evidence on the complainant’s delay in bringing his case forward. However, the complainant gave very compelling testimony which was unchallenged on the time that he needed to start again after leaving the respondent employment. He submitted this prevented him finding the WRC sooner.

I accept that he was unable to place his claim before the WRC before March 30, 2023. I accept that this does not prejudice the respondent in the case. The complainant has a good arguable case.

I have found it necessary, based on the uncontroverted evidence of the complainant to extend the time in this case. I find that closure will only follow a careful consideration of the facts relied on and this requires me to act in equity to extend the time limit by operation of Section 41(8) of the Workplace Relations Act, 2015.

Substantive Case: 

I am satisfied that the WRC provided the Respondent an ample opportunity to attend a hearing in this matter and his decision not to attend is both unexplained and unhelpful.

The Complainant gave a compelling account of a discretionary top up additional leave system around Christmas time which he availed of during his entire employment.

It is regrettable that when the Respondent appears to have asked him who sanctioned it, he could not remember, but was very clear at hearing that it was a named Driver, whose tenure exceeded his.

I must be first satisfied that the monies claimed are properly payable, Sullivan v Department of Education [1998] ELR 217   at EAT and latterly in Balans v Tesco Ireland ltd [2020] IEHC 55, in the High Court.

The Complainant is not seeking accrued but untaken statutory annual leave, but instead is seeking the proceeds of what he described was a universal practice, if anyone presented for work over the Christmas period, time in lieu followed. He gave uncontroverted that he availed of this over the 5 Christmas periods he worked. No Collective Agreement was registered, and no explanation of this system was published.

I have reflected on the complainant’s evidence, and I am satisfied that the practice that he described was availed of by him for the 5 years of his employment, which, in my opinion amounted to a custom and practice arrangement on which he could safely rely on as properly payable. It does appear to be something not officially endorsed by the employer, but nonetheless was availed of by the complainant.

I would have liked to have met with the Respondent to probe the practice further, but that was not to be.

Instead, I accept the uncontroverted evidence adduced by the complainant that in the reconciliation exercise at the conclusion of his employment, he did not receive payment in lieu of those floating days.

Section 5(1) of the Act prohibits a deduction in wages, save for a limited number of circumstances, none of which prevailed here.

I am satisfied that the complainant was faced with an illegal deduction in wages on 9 September 2022.

The claim is well founded.

Epilogue:

As I was working on this decision on 6 November 2023, I received a copy of an email issued by the Respondent on Friday morning last, November 3, 2023.

The email explained that the respondent had been called away to a medical emergency during the hearing allocation time and while he did not agree with the claim, he was prepared to pay the complainant €400.00 on receipt of his bank details.

This development was shared with the complainant for comment. The complainant conveyed his refusal of the offer to the PRU on 9 November 2023.

My decision issues as completed.

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.

Section 6 of the Payment of Wages Act, 1991, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim is well founded. I direct the Employer to pay the complainant €400.00.

 (4 days leave) in compensation in respect of the contravention of Section 5 of the Act.

This amount is subject to lawful statutory deductions.

Custom and practice, payment of wages