Complainant

Respondent

Parties

Carmen  Alvarado Egli

Experience Medical Limited European College Of Aesthetic Medicine Surgery

Representatives

  Self

Patrick O'Donovan, Patrick O'Donovan & Co.

Act

Complaint 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-00055432-001

07/03/2023

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

CA-00055432-002

07/03/2023

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

CA-00055432-003

07/03/2023

The Complainant alleges that she is owed payment in respect of holidays, public holidays and subsistence. 

The Respondent refutes the complaint and asserts that it is out of time.

The Respondent submits that the Complainant’s employment ended on 30 April 2022, but she did not submit her complaint until 7 March 2023.  Therefore, her complaint is out of time in accordance with the provisions of section 41(6) of the Workplace Relations Act 2015 which prohibits an adjudication officer from investigating a complaint unless it has been submitted within six months of the date of the alleged infraction. 

The Respondent referred to section 41(8) of the Workplace Relations Act 2015 which permits an extension of the time limit to twelve months if the Complainant can satisfy the adjudication officer that there existed a reasonable cause to excuse the delay.  The Respondent contends that a reasonable cause for the delay has not been provided by the Complainant.

The Complainant submits that reasonable cause exists due to:

·       The close personal relationship between the parties.

·       The close personal relationship between the children of the parties.

·       The Complainant had raised her issues on many occasions with the Respondent but was ignored or dismissed and it was only with the Complainant took up new employment that she realised how things should be done in the workplace with respect to employment rights.

·       The Complainant raised her issues with the Respondent in December 2021.  The Respondent did not engage but was aware of the issue.

·       The Complainant sent registered letters to the Respondent and the Respondent’s accountant on 14 December 2022 which were ignored.

·       The Complainant had a number of personal issues which she had to prioritise.

·       The Complainant had just moved house.

·       The Complainant had started a new job.

The first matter I must decide is if I have jurisdiction to hear this complaint.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The time limits for submitting claims to the Workplace Relations Commission are set out in section 41 of the Workplace Relations Act 2015 which provides 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.”

I note that the Complainant’s employment with the Respondent ended on 30 April 2022. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted to the WRC by 29 October 2022.  In this case, the initiating complaint referral form was received by the WRC on 7 March 2023.

I find, therefore, that this complaint has been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act 2015. 

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“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.”

In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“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.”

I note the Complainant first raised her issues with the Respondent in December 2021.  In an email to the Respondent on 21 December 2021, the Complainant included links to information on the Citizens Information website.  This website contains guidance on how to make a complaint to the WRC.  I am of the view that if the Complainant’s issues were not resolved by the time she resigned from her employment, she could have sought guidance on submitting a claim from the Citizens Information website, given that she was clearly familiar with that resource.

I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a complaint under the Workplace Relations Act, 2015.

Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint.

Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit.

I declare that this complaint is not well founded.

Time limits – no jurisdiction