Complainant

Respondent

Parties

Frank  Collins

Galro

Representatives

  Self Represented

Terry Gorry & Co Solicitors

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-00063871-001

03/06/2024

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

CA-00063871-002

03/06/2024

The Complainant was employed from July 2019 to May 2024 as a Support Worker. The Respondent introduced new pay rates in January 2023 which the Complainant did not accept and the Complainant alleged he was not paid an increase of 1 Euro per hour due from the existing pay scale in either January or August 2023  (amounting to between 1800 and 3000 Euros) and also that he was due 18,000 Euros when he was placed inappropriately on administrative leave due to a Garda Vetting issue and both amounted to illegal deductions of wages.

In January 2022, a  company director  sent a memo to all staff outlining a new pay scale to come into effect. This new pay scale was promoted as good news for employees and to show the company’s appreciation for staff’s work through the Covid pandemic etc. However, not all employees benefitted from this change. In fact, it meant for the Complainant a pay freeze for two years before he would receive his previously contracted pay rise, in line with his contracted pay scale.

The Complainant highlighted this to management and to HR after receiving emails stating that employees were “required to sign the contract amendment”. After a meeting with the Head of Care and emails to were they acknowledged that he was not in fact legally required to sign anything, he was informed that the issue would be dealt with when he was due his next pay raise, which was on the 1st of January 2023.

In October 2022, an issue arose with his Garda Vetting and he was placed on Administrative Leave and then Off-Pay (This is the subject of his second complaint). He then returned to work in May 2023, attended the Labour Court in July 2023 and entered into the Grievance Procedure with GALRO in August 2023. He sought to have these two complaints addressed separately, although the issues were complicated by the fact that he had been placed on Administrative Leave and Off-Pay. GALRO simply refused to address the issue of the pay that he was due, only referencing the complaint in the reports on Stages 2 and 3 of the Grievance Procedure, dismissing the issues as not being associated with him being placed on Administrative Leave and Off-Pay. This is despite the fact that the minutes of the meetings taken during these stages of GALRO’s Grievance Procedure documented very clearly that the issue of his pay raise would be addressed separate to the complaint about him being placed on Administrative Leave and then Off-Pay.

The Complainant stated he was due a pay raise to €17/hr on the 1st Jan 2023, as he was still on the pay scale he was contracted for when he began employment with GALRO. HR had stated that they would discuss the issue when that time arrived. Unfortunately, as he was placed on Administrative Leave in October 2022 and then Off-Pay in November 2022, this did not happen. However, when he returned to work on the 20th of May 2023, he would have been due his raise by 1st of August 2023, at the very least. GALRO simply refused to acknowledge this or engage with him in any meaningful way. As a result of this, he was left on €16/hr until he ended his employment with the company on the 24th May 2024. 

The Complainant believed that he should never have been placed Off-Pay in the first place, he effectively missed out on my pay raise for 17 months, which he calculates, given his regular hours, amounts to approximately €3,000. For the sake of argument, if it is decided by the WRC that he was placed Off-Pay legitimately, he was still due his pay raise on his return to employment and missed out on 10 months of a pay raise which he calculated would be approximately €1,800.

GALRO and its legal representation have put forward the notion that the complaint is “out of time” and should not be heard by the WRC, as it was not brought within the 6 months deadline or 12 months extended deadline. The Complainant argued this is nonsensical as, as he previously outlined; he raised the issue with HR, who said they would deal with it when the time for his raise arrived. He was then placed Off-Pay in Nov 2022. When he returned, he made a formal complaint utilising GALRO’s Grievance Procedure, which finished when he received GALRO’s Stage 3 report on 20th December 2023. This came to nought so he filed his complaint with the WRC on the 3rd of June 2024, which is within the 6-month deadline.

On Friday 21st of October 2022, the Complainant was summonsed to Head of Care office for an urgent meeting. When he arrived at 17:45, his Line Manager was present with the Head of Care and he was informed that his routine Garda Vetting, which had been delayed for a number of months, returned with a pending charge of “Assault”, with a court date in February 2023. (By this time he had had two meetings with the Head of Care regarding his other complaints, which ended in respectful disagreement but with, in his opinion, them both realising that they simply had very different ideas and values regarding how the company operated.)  The Complainant submitted substantial details of issues relating to the Garda vetting which are not central to this case and the assault case was ultimately dismissed without being heard. The Garda involved, who attended the scene and appeared in Court, on the day, expressed to the Complainant  his puzzlement as to why he was being prosecuted.

The Complainant submitted substantial detail regarding his complaint about being laid off and use of the grievance procedure however this is more relevant to the substantial issue involved rather than the preliminary issue of if the complaint is within time and I have therefore decided to not include it in this summary.

The Respondent raised a preliminary objection by letter dated 19th June 2024.

The contents of the letter was as follows:

“We note that the first complaint arises from an alleged breach of the Payment of Wages Act, 1991 on 1st January 2023. As the complaint was received by the WRC on 3rd June 2024 this complaint is out of time and the WRC do not have jurisdiction to hear said complaint for this reason.

The second complaint arises from an alleged breach of the Payment of Wages Act, 1991 on 13th May 2023. This complaint also is out of time. Even if the complainant could show reasonable cause for the complaints not being brought within the required 6 months period and the time period was extended to 12 months, assuming the complainant could show reasonable cause for the complainant's delay, both complaints are still out of time. We would ask you, in the interests of faimess and efficiency, to advise the complainant to withdraw said complaints as the WRC lacks jurisdiction to hear them.

The Respondent renewed his preliminary objection to the hearing of these complaints at the Hearing on the basis that they were both out of time. They submitted case law, outlined below,  to support their position.

In the recent case of Kevin Stapleton -v- Acushla Limited (ADJ00037399), the respondent employer argued that the filing of the complaint was out of time and therefore the Adjudication Officer did not have the jurisdiction to hear the claim. They cited Section 41 (8) of the Workplace Relations Act, 2015 which sets out that an Adjudication Officer can only entertain a complaint if submitted within six months or within twelve months where a reasonable cause has been afforded. The decision of the adjudication officer,  was that she did not have jurisdiction to investigate this complaint as it is out of time.

However, there is a body of case law which suggests an Adjudication Officer is precluded by law from holding a substantive hearing until a decision on the preliminary matter is in fact reached.

In Mary Sheehy v Most Reverend James Moriarty UDI 264/2008 the Tribunal held that "the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing" where "the claims were not instituted within the time periods set out in the legislation".

In the case of Guerin v SR Technics Ireland Limited UD969/2009, the Employment Appeals Tribunal was asked to make a decision on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

In the case of Bus Eireann v SIPTU PTD8/2004 the Labour court indicated that a preliminary point should be determined separately from other issues arising in a case 'where it could lead to considerable savings in both time and expense' and where the point was 'a question of pure law where no evidence was needed and where no further information was required'.

In the case of Donal Gillespie and Donegal Meat Processors UD/20/135 the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be dealt with together was "akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. In determining the issue of jurisdiction, the Court must confine itself to the nature of the termination without enquiring into the fairness or otherwise of the decision itself, having regard to submissions made on the preliminary issue by both parties, the documents referred to therein and the relevant statutory provisions. Only if the Court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself'.

In Eddie Lyons and Servecentric Ltd UD/22/52 the Court found that "the within claim was out of time when it was presented to the WRC on 11 May 2021 and is accordingly statute barred the court determines that it has no jurisdiction to hear the substantive matter".

The Respondent submitted that WRC proceedings can be quite time consuming as well as financially draining on parties who have availed of legal representation. By affording the parties early confirmation on the preliminary issues, an Adjudication Officer can avoid an excessive amount of time being spent addressing a complaint which would be bound to fail on a technical reason, in any event.

Accordingly, the Respondent asked that a decision is made on the preliminary matter before the hearing of the substantive matter as it was the Respondent's case that the WRC does not have jurisdiction to hear the claims.

The Complainant was employed from 22/7/2019  to 24/5/2024 and submitted two complaints to the WRC on 3/6/2024. Both parties made written submissions in advance of the Hearing and at the Hearing the Respondent argued it had no case to answer as both complaints were out of time and requested a decision on the preliminary issue of the complaints being out of time as it did not want to incur the cost of preparing a defence to the main issues as it argued the complaints were out of time and therefore the Adjudication Officer had no remit to investigate the substantive issues involved. Having listened to both Parties the Adjudication Officer agreed that issuing a decision on the preliminary issue of the complaints being within/outside of time was a prudent way forward.

The Law

The first complaint submitted alleged in his complaint form that the Complainant was not paid 3000 Euros on 1/1/23. The Complainant explained at the Hearing that this related to a 1 Euro per hour wage raise he stated he was due commencing on 1/1/23 or at the latest 1/8/2023 and that he was not due 3000 Euros on 1/1/23 but the increase per hour should have commenced in January or August 2023 at the latest. However, from the documentation submitted by the Complainant this increase he sought appeared to be due after three years service, in July 2022. The Respondent argued that the increase of 1 Euro was not contractually required or agreed to and that the original complaint was out of time as it was submitted more than six months after the alleged contravention of the Act. The Complainant returned to work after his lay off in May 2023 and the complaint was submitted  to the WRC on June 3rd 2024. From the documentation the increase sought appeared to be due, if it was due at all,  on July 22nd 2022 (this would be then be  date which the contravention relates to) per the old pay scale and as the complaint was submitted in June 2024, I deem the complaint to be out of time. The issue of the new pay scale is not relevant as this was never accepted by the Complainant.

With regard to the second complaint submitted the Complainant was placed on Administrative Leave in October 2022 due to a Garda Vetting issue. The Complainant returned to work In May 2023 and claimed he was due 18,000 Euros in lost compensation for the period he was out of work from October 2022 to May 2023. The complaint was submitted in June 2024 and the Adjudicator has no jurisdiction whatsoever to evaluate a complaint, despite the reasons offered by the Complainant for the delay in submitting the complaint,  which occurred more than 12 months before the date the complaint was submitted to the WRC. I deem the complaint to be out of time.

I find that Complaint number  CA-00063871-001 is out of time and I have no jurisdiction to deal with the substantive complaint.

I find that Complaint number  CA-00063871-002 is out of time and I have no jurisdiction to deal with the substantive complaint.

Breach of Payment of Wages Act