Complainant

Respondent

Parties

Martin  Hamill

Kildare And Wicklow Education and Training Board

Representatives

Self-Represented

Lian Rooney ,IBEC

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-00061415-001

07/02/2024

The Complainant commenced employment with the Respondent on 1st January 1995. At all relevant times, the Complainant’s role could be described as that of “teacher”. The Complainant remained in employment with the Respondent on the date of the hearing.

On 7th February 2024, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had underpaid him from 1st April 2010 to the date of referral. In this respect he submitted that his employment was incorrectly classified for a number of years with the same being duly corrected on 26th June 2023. In denying this allegation, the Respondent submitted that the Complainant had not suffered any illegal deductions from his wages. Without prejudice to the same, they submitted that the complaint was clearly out of time for the purposes of the impleaded Act.

A hearing in relation to this matter was convened for, and finalised on, 29th April 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

Both parties issued extensive submissions in advance of the hearing, these were expanded upon and contested by the opposing side in the course of the hearing. In circumstances whereby no material dispute arose as to the factual matrix presented by the parties, no evidence was called by either side.

In circumstances whereby the preliminary issues as to time may be determinative of the entire set of proceedings, this will be considered in advance of the substantive matter.

By submission, the Complainant accepted that his complaint, as framed, related to an alleged underpayment of wages from approximately fourteen years prior to the referal of the same to the Commission. Nonetheless, he submitted that the underpayment arose as a consequence of the relevant governing body incorrectly classifying him as a “casual tutor” rather than a “teacher”. In this regard the Complainant submitted that he was engaged with the long-running campaign with the governing body regarding this classification. On 26th June 2023, the Complainant was informed that his registration was to be amended, and that the same was to be backdated to 1st April 2010. As a consequence of the foregoing, the Complainant submitted that he was unable to refer his complaint until such a time as he received the notification from the governing body. Following from the same, the Complainant submitted that the relevant time-limits should be disregarded by the Adjudicator, and that jurisdiction should be accepted in relation to the substantive matter.

By response, the Respondent submitted that the complaint, as framed, is clearly and unambiguously out of time for the purposes of the impleaded Act. In this regard they further noted that the date on which the Complainant received notification of the retrospective amendment of his registration is itself in excess of six months prior to the referral of the present complaint. In such circumstances, the Respondent submitted that the Adjudicator should decline jurisdiction in relation to the present matter.

At the outset of the current proceedings, the Complainant was advised by the Commission that his complaint may be statute barred for the purposes of the impleaded legislation.

In this regard, Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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 6(8) provides that,

“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 the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. stated that,

“…the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period”

And,

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

In the matter of Elsatrans Limited -v- Joseph Tom Murray, PWD 1917, the Labour Court found that when part of a complaint in relation to the non-payment of wages is referred outside of the relevant time-limits, this serves to render the entirety of the complaint out of time.

Having regard to the instant case, it is apparent that the Complainant has framed the present complaint to run for a period of a number of years prior to the referral of the complaint. In this regard, the second scenario envisioned by Hogan J above is applicable and it is apparent that the complaint, as framed, is out of time for the purposes of the impleaded Act.

While the Complainant has submitted that the reason for the non-referral lay with his incorrect classification with the governing body, it is noted that this matter was corrected on 26th June 2023. This being the case, it is apparent that the present complaint was not referred until 7th February 2024, itself a date in excess of six months from the removal of this alleged barrier to the referral of the complaint.

Regarding the above-mentioned point, the Complainant has submitted that he was engaged in local discussion with his employer in relation to the issue. In this regard, he submitted that once it became apparent that these discussions were not going to resolve the issue, he referred the present complaint. While the Complainant is to be commended for seeking to address the matter locally prior to referring the present complaint, it is long established that engagement in such discussions cannot constitute reasonable grounds for the extension of time. In the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that,

“…a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”

Having regard to the accumulation of the foregoing points, I find that the complaint as referred is out of time for the purposes of the impleaded Act. As a consequence of the same, I find that the complaint is not well-founded.

I find that the complaint is not well-founded.

McDermott, Time, Local Discussions