Complainant

Respondent

Parties

Daniel  Clarke

Zukon Ltd. The Auld Shebeen

Representatives

Ignatius Clarke None

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-00051219-001

18/06/2022

The complainant submits that he is owed monies from the respondent.

The complainant’s complaint was received by the WRC on 18/06/22.  The complainant commenced employment on 12/09/2019 and his employment ended on 13/11/2021 when he resigned his position.  His gross weekly was €584.80.

Preliminary Issue:

The complainant said he agreed that he submitted his complaint outside of the time limits but that he had taken the respondent at their word that the monies would be paid.  Every time he asked the respondent about the outstanding monies he was given an excuse.  The complainant agreed that he had time to set up a business but expected that the issue with the money would be sorted and did not get to send in the form to the WRC until June 2022.

Substantive Issue:

The complainant’s evidence was that he worked as a Head Chef and on 15/3/2020 he was laid off because of Covid and never received any annual leave during 2020 and his last wage was 13/3/2020.  His expectation was that leave from 2019 and 2020 owed and his back pay would be paid but this did not happen.  He said he sent emails and messages to get payment but the respondent did not pay.  In October 2021 his partner was in a serious accident and she could not work and he needed the money that he was owed but it still did not come from the respondent.  In November 2021 the complainant made the decision to set up his own business and resigned from the respondent and requested payment again but nothing was paid.  The complainant said that there was property belong to him to work as a chef including knifes on the premises and they were never returned to him.  The complainant’s evidence was that he was owed approximately €2,492.  The respondent declined to cross examine the complainant as he said that the complainant was owed money.

Preliminary Issue:

In response to the question regarding time limits, Mr Farrell did not disagree that it appeared to be out of time.

Substantive Issue:

Mr Farrell said that the business is going through insolvency and that he owes other people money and he said he would not disagree with the complainant that there is money owed to him.  Mr Farrell said that he is going through his own difficulties and that it is very traumatic and that if he could pay the money himself then he would.  Under cross examination Mr Farrell said that there are monies outstanding to a number of people including the banks and that he had personal circumstances impacting matters and that there is nothing that he can do about it.  He said he was locked out of the premises and everything is gone and locks have been changed and that he is a proud man and was not able to talk about what was happening. 

The complainant submits that he is owed approximately €2,492 and the respondent does not deny that there are monies owed. 

The complaint was received by the WRC on 18/06/2022 and the complainant submits that the monies are owed from 2019 until he resigned his position on 13/11/2021.

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 complainant submitted his complaint outside the 6 months referred to above and he submits that he hoped that the matter would be resolved between the parties and he was setting up a business as to the reasons why he did not submit his complaint earlier. The Labour Court outlined in TED223 GL Entertainment Distribution/Ewelina Konarska the established tests for deciding if an extension should be granted for reasonable cause as determined by the Labour Court (DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll).  It is, therefore, for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay.

Failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Therefore, there must be a causal link between the circumstances cited and the delay and the complainant should satisfy, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. 

I note that the complainant was able to engage in the process to set up a business for himself and sent numerous emails and messages to the respondent regarding monies and property owed.  I note therefore, that there would have been nothing preventing the complainant also submitting his complaint during this time. 

Having reviewed all the evidence and submissions, I find that the complaint was presented outside of the statutory time limit and that the complainant has not met the test for reasonable cause and I find therefore, the complaint is unfounded.

Having reviewed all the evidence and submissions, I find that the complaint was presented outside of the statutory time limit and that the complainant has not met the test for reasonable cause and I find therefore, the complaint is unfounded.

Payment of wages, time limits