Complainant

Respondent

Parties

Anne  Keenan

Co Wexford Community Workshop New Ross Clg Cumas New Ross

Representatives

Fiona Grogan Hegarty & Co.

Adrian Twomey, Jacob and Twomey Solicitors LLP

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-00052977-001

26/09/2022

The Complainant is alleging that she is owed money by the Respondent in relation to her annual leave entitlements. The Respondent argues that the complaint is statute barred.

On the 14th February 2022 the Complainant’s employment ended. Following several phone calls and emails to the WRC, the Complainant on the 22nd of February 2023 emailed the WRC stating the following:

“I was concerned that I hadn't heard from the WRC and went to call the office this afternoon but reviewed the documentation prior to making the call. It was then that I discovered that the WRC had made the decision that my complaint was out of time. This is incorrect. Please see below.

The complaint was originally submitted on the 21st of May 2022. It was acknowledged and was given a complaint adjudication reference CA00050745.

On the 2nd of August, I contacted the WRC office to find out the status of my complaint.

After a lengthy discussion and review of the submission document and the various actions that had been taken by the WRC up to that point, I was told that I had mistakenly requested for the case to be investigated rather than adjudicated and that the complaint was with the investigators. I was asked to submit an email formerly confirming that I wished for the complaint to be adjudicated rather than investigated. I was informed by the representative that took my call that they would make a note on the file to expect the email.

On 2nd August 2022 at 09:48 hours, I submitted an email confirming that I wish the complaint to be adjudicated.

After not receiving any further communication, I contacted the WRC office again on the 26th of September 2022. Again, the representative that I was speaking to was able to review everything that had occurred to date including receipt of my email requesting adjudication rather than investigation again, I was informed that the matter was still with the investigators. I was further informed that once my file was transferred to adjudication that it would be asked to resubmit the form again taking the correct box. I was told that it would save time for me to resubmit it prior to the formal request. But again, a note we put on my file to expect the resubmitted complaint form”

 The complaint was filed on time, but the Complainant did tick the incorrect box. After she had sought clarification and had been informed of the error that she had made she was then told that the file would be transferred to the adjudication services. When the Complainant heard nothing from the WRC she contacted them again on the 26th September. She was informed that it would be better that she filed a new complaint form requesting adjudication. She filed the new complaint immediately.  Unfortunately, there is nothing in writing confirming what the Complainant says she was told by the WRC.

The Complainant did not have solicitors on record at this time. She employed solicitors in June 2023. The Respondent stated that the Complainant was represented by another firm of solicitors going back as far as 2022. The Respondent had received several letters from those solicitors in relation to the matter before the Adjudicator today. The Complainant states that she filed her first complaint in May 2022. Her then solicitors were actually not on record at the time she filed her original complaint. She had discharged them before she filed her complaint.

The Complainant had no idea that the inspection she had requested in her original complaint form had occurred. She did not mean for that to happen.

The Complainant is on the belief that the Respondent would have been on notice of the complaint in August.

The Complainant commenced her employment with the Respondent on 28th August 2006. She tendered her resignation in January 2022 and her employment ended on 14th of February 2022. Prior to her resignation and continuing up to the 22nd of March 2022 the Respondent solicitor Mr. Twomey had received numerous correspondence from the Complainant’s then solicitors, in relation to the payment of wages issue. Those letters are dated 25th of January 2022, 31st January 2022 21st February 2022, 1st March 2022, 22nd March 2022. Those solicitors remained on record until June 2022. The original complaint seeking an investigation was filed in May 2022.

The Complainant did not file this complaint until the 26th of September 2022.

Adjudication officers are prohibited by section 41 from entertaining complaints under the acts listed in schedule 5 of the Workplace Relations Act, 2015 unless they are submitted within the period of 6 months beginning on the date of the contravention complained of or within 12 months of same where the adjudication officer is satisfied that failure to present the complaint or refer the dispute within the initial 6-months is due to reasonable cause.

S41(8) “The 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 me be, if he or she is satisfied that the failure to present the complaint or refer the dispute with that period was due to reasonable cause.”

The Complainant was represented by solicitors until June 2022. They were engaging with the Respondent’s solicitor in relation to the issue. In those circumstances the compliant is out of time and no reasonable cause has been shown that could allow the adjudicator extend the time pursuant to S41(8).

The Complainant’s employment came to an end on the 14th February 2022. She filed her complaint ADJ 45697 CA 00052977 on the 29th September 2022. That complaint states:-

“In 2021 I carried forward 79.2 days in time and lieu from 2020. I took 20 days time in Lieu off through 2021. Leaving a balance of 59.2 days, time in lieu not taken and accrued an additional 43.7 days time in lieu in 2021 that was signed off by the chairman of the board. I carried forward a total of 102.9 days, time in lieu into 2022 which I have not received payment for. The company added my time in lieu accrued on their holidays and absences record form and it was added to the annual leave entitlement. I have previously been paid accrued time in lieu in 2018,2019,2020 and in 2021. I carried forward 6 days annual leave from 2020. I was granted 28 days annual leave as my entitlement, and the board awarded all staff a further 2 days annual leave in 2021. That left my total annual leave for 2021 as 36 days. I took 13 days annual leave off in 2021 leaving a balance of 23 days annual leave. I carried forward a total of 23 days annual leave into 2022. I accrued a further 3.49 days annual leave in 2022. This leaves a balance of 26.49 days annual leave that I have not been paid for. I have not received a final payslip.

What I do not know and what was not addressed by either party was when payment for that 26.49 annual leave was due to be paid. The parties have both argued that the date of contravention was the 14th February 2022 but the contravention could be a date earlier than that depending on when the payment was due to be made. I don’t have the information needed to accurately assess that issue, but it is something worth noting.  For the purpose of this decision, I am using the 14th February 2022 as the date of contravention. On that basis the Complainant had until the 13th August 2022 to file her compliant. It was not filed until the 26th September 2022. However, the Complainant did file an almost identical complaint in May 2022 seeking an investigation not an adjudication. The Respondent was not on notice of the content of that complaint but where subjected to an investigation by the WRC inspectorate.  The Complainant had engaged solicitors from January 2022 to June 2022. Those solicitors wrote to the Respondent’s solicitors in relation to the subject matter of the within claim on the 25.02.2022, 31.01.2022, 21.02.2022, 21.03.2022 and the 22.03.2022. Despite having solicitors on record for her the Complainant stated that she filed the first compliant herself without the assistance and/or knowledge of her solicitors. She then discharged them as she was planning to do the case herself. Her current solicitors came on record in June 2023.

The Complainant contacted the WRC on 2nd August 2022 enquiring when she might receive a hearing date. That was when she was told that there was no file with the Adjudication services. The file was with the inspectorate. She states that she was told that the file would be transferred over the Adjudication services upon receipt of an email from her and following that a note would be put on the system.  She did send the email that day, but nothing happened on foot of it. She called again approximately six weeks later on the 26thSeptember 2022. She was told that she should file a new complaint.

The Complainant was informed by the WRC on the 2nd August that she had made an error when she filed her original complaint. That was within the 6 month time limit. Had she acted on that information immediately and filed a new complaint seeking adjudication she would have been within the statutory time limit. Instead, she waited another six weeks before she made further enquires. No real explanation was given for the delay between the 2nd August and the 26th September.

Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'.

“Reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.  Here the test was set out in the following term;

“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 of 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 months’ 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 had not been present, he would have initiated the claim on time.”

In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should been enlarged for “good reason” in judicial review proceedings pursuant to Order 84 Rule 21 of the Rules of the Superior Courts 1986.   That approach was held to be correct by the High Court in Minister for Finance v CPSU and others .   The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation  .  Here Costello J (as he then was) stated as follows; “The phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely.    However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved Plaintiff believed that he or she were justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.   Secondly, the onus is on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, I must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.  It is the actual delay that must be explained and justified. Finally, while the established test imposes a relatively low threshold of reasonableness on an Applicant, there is some limitation on the range of issues which can be taken into account.”   In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

The Complainant had engaged solicitors from January 2022 to June 2022. She filed her first complaint in May 2022. She did so without the knowledge or assistance of her then solicitors. She became aware of the error she had made in seeking an inspection and not adjudication on 2nd August 2022. She stated that she was informed that the file would be transferred to the adjudication services upon receipt of an email from her requesting the transfer. The Complainant did not call the WRC adjudication services the next day to ensure that the file had been transferred. She did nothing for six weeks. By the time she finally got around to making those enquires the statutory time limit had expired. In those circumstances I find that the Complainant has failed to establish reasonable cause for the delay. Therefore, I conclude that I do not have jurisdiction to hear the within complaint.

The complaint fails.

The complaint fails.

S41(6) and (8). Reasonable Cause. Date of Knowledge.