ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045920

Parties:

	Complainant	Respondent
Parties	Cyril Murray	Jj Fleming & Co Ltd

Representatives

Colin Walsh The Society of the Irish Motor Industry

Complaint:

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-00054800-001	27/01/2023

Date of Adjudication Hearing: 16/10/2023

Workplace Relations Commission Adjudication Officer: Louise Boyle

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. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. Where submissions were received, they were exchanged. Mr Murray gave evidence under affirmation and Mr Pat Fleming gave evidence under affirmation. Mr Denis Fleming was also in attendance

Background:

The complainant submits that he is owed monies.

Summary of Respondent’s Case:

Preliminary Issue:

The respondent submitted that the complaint is out of time. It was submitted that the Complainant commenced employment on 2nd January 2020 as a Service Manager reporting to Mr. Fleming and was paid €894.23 gross per week. The complainant’s employment ended 15th February 2021 and the complainant submitted this instant complaint to the WRC on 27th January 2023 which is 23 months from the date of alleged contravention. It was submitted that a previous unfair dismissal claim ADJ-00032472 was heard and the complainant was awarded €2,700 which was not appealed by either side and the award was paid to the complainant. This complaint for monies owed is, therefore, out of time.

Under evidence Mr Pat Fleming said the complainant was given a contract which stated 1 weeks notice and under no circumstances was he told he was to be given 2 weeks’ notice. There was no cross examination of Mr Fleming.

Summary of Complainant’s Case:

Preliminary Issue:

In response to the preliminary issue the complainant submitted that the time limits were a technicality and that at the previous WRC Hearing it was identified that he was owed monies. He confirmed in evidence that his original complaint was an unfair dismissal claim and that he was successful and that he did not appeal the decision. He said in evidence that he did not know that he had to tick a box about monies owed and said that the reason he did not submit a claim earlier was that he had mentioned it at the previous hearing.

Substantive Issue:

The complainant said in evidence that he is owed monies for 15/2/21 totalling €180 as he was not paid for that day and that he is also owed 2 weeks pay totalling €1,788.46 as he was not given notice and that he is also owed holiday pay of €468 and the total he is owed is €2,436.46. Under cross examination he said he had a verbal contract with Mr Fleming that he would get 2 weeks notice and that this superseded the one weeks notice in his contract.

Findings and Conclusions:

The complainant submits that he is owed €2,436.46 a complaint which the respondent denies. The respondent submits that the complaint is out of time as the complainant’s employment ended on 15/02/21 and this instant complaint was received by the WRC on 27/01/23. A previous WRC hearing was held on 01/04/22 & 18/07/2022 and a decision Adj-00032472 issued dated 21/11/22 which was not appealed by either side.

Preliminary Issue:

Section (6) sets out that

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 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 complaint had been submitted outside the time limits referred to above and I also note that the complainant did not appeal the decision regarding his unfair dismissal to address any questions he may have had regarding if any other monies were owed. I note the complainant would have been familiar with the process and timelines having previously submitted a complaint. Even if the complainant did not have knowledge of the law regarding time limits, ignorance of one’s legal entitlements, as opposed to ignorance of the facts giving rise to those rights, does not excuse a failure to present a claim on time. This was firmly established by the High Court in Minister for Finance v Civil and Public Services Union & Ors [2007] 18 E.L.R. 36.

Taking into consideration all the submissions and evidence I find that the complaint was presented outside of the statutory time limits and I find therefore, the complaint is unfounded and I dismiss the 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.

Dated: 28-11-2023

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Monies owed, time limits