ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051498

Parties:

Complaint:

Date of Adjudication Hearing:  24/09/2024

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 6 of the Payment of Wages Act, 1991 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Oath / Affirmation was administered to all witnesses present. The legal peril of committing Perjury was explained to all parties.

No issue regarding confidentiality arose.

Background:

1:        Opening legal Arguments – Time limits as per Section 41(6) of the Workplace Relations Act,2025

1:1       Respondent Arguments

The Respondent gave an Oral Testimony from Representative ,Mr Hyde, supported by a substantial Written Statement.

The Respondent argued that the complaint was Statute Barred having been submitted some 8 -eight months post the termination of the employment.

The Respondent relied on Section 41(6) of the Workplace Relations Act,2015

(6) 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.

(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 employment ended on the 10th August 2023 – six months post that date (which was contested) would have been the 10th February 2024.

The complaint was lodged at the WRC on the 29th April 2024 – nearly 8 months and 19 days later. No “Reasonable cause” had been advanced to support the granting of an extension to 12 months as provided for in Section 8.

1:2        Complainant Arguments.

The Complainant gave a lengthy Oral testimony and referred to a comprehensive Written Statement.

The end date of the 10th August 2023 was for “Formal employment” only.

Substantial discussions had begun (emails of the 3rd August 2023) and had continued with the CEO, Ms MCD, regarding an alternative part time role. These proved inconclusive and ended on the 21st November 2023. 6 months post this date would have been the 21st of May 2024 making the 29th April 2024 (5 months and 8 days) referral well within time.

1:3       Adjudication view /Conclusions

Both parties agreed that the 10th August 2023 marked the end of “Formal Employment”

Further discussions took place regarding an alternative role on a possible consultancy basis. Some additional work was carried out by the Complainant in late august/early September in relation to the IT systems and a software Supplier. The Respondent advised the Complainant to invoice for this work which he did in late September 2023.

The Complainant presented as a very competent business Executive. Albeit accepting that Employment Law was not his speciality the well know six-month rule cannot have escaped his understanding.

His Oral testimony pointed to a desire to keep relationships cordial while the “Consultancy/ Part Time” discussions were on going.

It is a difficult Complainant case to make that this “quasi-Limbo” period constituted employment sufficient to satisfy the requirements of Section 41(6) of the Workplace Relations Act, 2015.

Even if the end date of the negotiations, the 21st November 2023 was to be accepted, hypothetically, the Complainant left a considerable period of time (5 months and 8 days) before lodging his claim at the WRC.

1:4        Adjudication conclusion

The Employment ended on the 10th August 2023. No realistic “Reasonable Cause” arguments have been made to consider extending this date to a 12-month referral basis, as per Section 41(8) of the 2015 Act.

The exchanges of e mails/correspondence regarding a new role /possibly consultancy work do not constitute “Work” for the basis of the Act or as a justification for a later “End” date.

Accordingly, the 6-month date for referral of claims/complaints was the 10th February 2024.

The complaint was lodged at the WRC on the 29th April 2024 and has to be considered “Out of Time”.

It follows that the Adjudication Officer has no jurisdiction to hear the Complaint.

The Compliant is legally “Not Well Founded” and cannot be pursued.

2:        Findings and Conclusions:

3:        Decision:

CA-00063141-001

Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.

In keeping with Section 41(6) of the Workplace Relations Act,2025 the complaint is “out of time” and the Adjudication Officer has no proper jurisdiction to progress it.

Accordingly, the complaint has to fail on Legal grounds.

Dated:   23rd October 2024.

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Key Words: