Complainant

Respondent

Parties

Frederika Catharina  Agricola

Economic Sense Limited

Representatives

 Mr. Anne Van Heerden

Ms. Cecilia Maronko, HR Practitioner

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-00049438-001

31/03/2022

The Complainant submits that her employer terminated her contract of employment and did not pay her last month’s salary, due under the employment contract. She submits that there was a contract in place, that the notice period is set out in the contract, and that she never accepted early termination. She submits that no meeting took place on 25/05/2021 and that the “early termination agreement” produced has a signature at the bottom which purports to be hers, but which is not – she did not sign it.

The Respondent denies the Complainant’s claims.

It submits that the Complainant voluntarily left her job and no monies are due and owing.

It further submitted, and sought to rely upon, a termination agreement in its documents to the WRC which is submits the Complainant signed. The Complainant denies having signed the document, submits that the signature on it is a fraud, and also points to the fact that in her correspondences with the Respondent, it never mentioned any termination agreement in its responses to her, prior to producing the putative termination agreement in its documents to the WRC.

The complaint was filed outside the legislatively prescribed six-month time-frame (“within six months”). The Adjudication Officer enquired, at the hearing, as to why the matter was filed outside the six-month time-frame. The Complainant cited a bereavement and said that she did not feel strong enough to pursue the matter at that point. She further stated that, she subsequently became aware of another employee who (in her view) had been poorly treated by the Respondent company, and that also provided some of the impetus for her filing her complaint, at that time. She said that she had engaged in correspondence with the Respondent in a bid to get it to resolve the matter. 

The Complainant submits that she worked for the Respondent from 04/01/2021 until 27/05/2021 and that her gross monthly salary was €3,916, based on a 44-hour week.

The complaint was received by the WRC on 31/03/2022.

The Complainant submits that after terminating her contract, her employer Economic Sense Limited has not paid her last month’s payment which the Complainant submits that is due and owing under the terms of her employment contract.

She further submits that her employer has not paid an open amount in relation to an expense charged of €346 for a stay in a hotel during her employment.

She further submits that the hotel expense arose in circumstances where she was housed by the Respondent company in mixed-sex accommodation with a male she did not know and therefore moved to a hotel and sent the bill to the company. She added that the internet was very poor in the company-provided accommodation, and therefore that would also have made it very difficult for her to do her job from the base provided; but her strenuous objection was that it was entirely inappropriate accommodation on the basis that a woman travelling alone was being housed with an unknown male.

She submits that emails and letters were exchanged over a period of months, with no resolution and so has filed a WRC complaint.

The Complainant vehemently denied having ever signed (or having sight of) the termination agreement submitted by the Respondent. She submits that the signature on it is not hers, and is a fraud. In support of her position, comprehensive submissions were made in relation to how her signature differs from the signature on the document; and she points to the fact that in the correspondences between the parties, the Respondent at no juncture wrote back and stated that the Complainant had signed a termination agreement, which she submits is logically what it would have done, had she done so. Instead, it said no such thing to her, at any point, and then submitted the putative termination agreement to the WRC very shortly before the hearing.

She submits that on 18/05/2021, it was the company who told her to “go on a holiday.” She said that she was asked to hand in her computer and sign a paper. She said that on 28/05/2021, she received payment for May, but not the hotel cost incurred. She said that she did not know what was going to happen.

On cross-examination

The Complainant was asked why she waited six (6) months to initiate contact with the company – that she had contacted them in December 2021. She said that she did not feel strong enough to fight the case alone, and that another colleague had had a negative experience of the Respondent company, which came to her attention around that time.

She was asked about her allotted leave, under her contract, which was twenty-one (21) days per annum (and a pro-rata of that on the basis that she was only with the company part of a year at the point when she took leave), and the fact that she was “on leave” for a much longer period than that. She was asked why she had not sought clarity as to how long she was going to be on leave, and on what basis. It was put to her that she was rendering no services during the relevant time-frame, and therefore could not expect to be paid. It was put to her that she had submitted the June invoice in December, which she disputed. She said that she had sent it at the end of June. She was asked if she followed up in relation to it. She said: “No. Only at the end of December.”

The Respondent denies the Complainant’s complaints.

It submits that she voluntarily left her employment for personal and family reasons and that, therefore, the “no work, no pay” principle applies.

It further submits that she signed a termination agreement to that end. It denies the Complainant’s allegations of fraud in respect of the termination agreement.

The Respondent denies the Complainant’s allegations in relation to the accommodation it provided to her. The Respondent further submits that in relation to expenses, they have to be approved, and the expense the Complainant submitted was not approved, and therefore no monies are owed to her.

Ms. K., Director – Witness for the Respondent – who was in attendance at the (disputed) May 2021 meeting.

Ms. K. gave evidence that the Complainant was due to relocate to take up the position but was somewhat slow in taking steps to make that happen; and that when it was discussed with the Complainant (at the meeting in May which the Respondent submits occurred), she was emotional, and was struggling due to having suffered a bereavement and due to ongoing family and home matters. She outlined that it was the Complainant’s choice to stop working for the Respondent company, and that she stated at the meeting “I just want to stop.” She outlined that the normal administrative process was then followed – an end-of-service pack was issued by an administrative assistant working for the Respondent company. In relation to the hotel charge, she outlined that it was the policy of the company that expenses needed to be approved, and that this had not happened in this case, and it was the position of the company that it did not owe the money. She further submitted that the accommodation provided to the Complainant was appropriate, and disputed the Complainant’s claims, in relation to it.

On cross-examination

It was put to her that, in relation to the alleged meeting of 25/05/2021, there was no evidence of the meeting in the diary. She said that it took place “spontaneously.” There was dispute between the parties as to whether the Complainant’s line manager was in attendance at the meeting. It was put to her that the “minutes” of the meeting have “never been accepted or provided.” It was put to her that there were discrepancies between the letter and the notes. It was put to her that the representative for the Respondent had come on record on 03/05/2021 but that the termination agreement had not been produced until last week. She said it had not been requested; that the Complainant was in attendance at the meeting; that the suggestion that the company had been unfair to her was not correct, and that, on the contrary, it had been quite compassionate towards her. It was put to her that the document had been falsified, and furthermore, that none of the correspondence refers to a termination agreement, until it was produced last week. Any allegation of falsification was flatly denied.

In relation to the accommodation provided, it was submitted on behalf of the Complainant that no reasonable employer would house a woman, in the same house, with an unknown male. This was disputed. The Respondent submitted that the “unknown male” was a work colleague of the Complainant, and someone she had met previously. Further, it was submitted that the accommodations provided were comfortable (in the context of their location) and appropriate.

I find that the complaint was filed outside the six-month time frame, prescribed in the applicable legislation.

I find that the reasons proffered by the Complainant for the delay in filing the complaint do not meet the threshold of “reasonable cause” required in order to allow for an extension in the time limit.

The cognisable period in the legislation is “within six months”, i.e. (6 months minus 1 day, as per the Interpretation Act). If “reasonable cause” can be found to exist, an extension in time can be granted under the legislation, up to a maximum of twelve (12) months.

I have had regard to the Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, wherein the test regarding the extension of time, was set out in the following terms: “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.” 

I have also had regard to the Labour Court determination UDD1624 Galway and Roscommon ETB v. Josephine Kennedy and the Labour Court Determination DWT2231, Compass Group V. Mr. Juris Akmentins, wherein it is set out that ignorance of the law is not an excuse and is insufficient in order to obtain an extension in time to the relevant cognisable period.

For completeness, in relation to part of the claim relating to the hotel expense, I find that as there is a specific exclusion in relation to expenses under s. 5 of the Payment of Wages Act 1991, I do not have jurisdiction to entertain this aspect of the complaint.

I find that I do not have the jurisdiction to entertain this complaint, as it was filed out of time.

Payment of Wages; Out of time; Reasonable Cause; Statute-Barred; No work no pay; Termination Agreement; Fraud;