Complainant

Respondent

Parties

David  Chalton

Barrow Hospitality Ltd

Representatives

  Self-represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00060289-001

28/11/2023

The Complainant was employed by the Respondent as a bar manager from July 2018 until 11 February 2023 when a new owner took over the business. The Complaint continued to work for the new owner for several months thereafter. He contends that he is owed 16 days annual leave for the year 2022. The Complainant submitted that the owner of the Respondent business committed to paying for annual leave accrued before 11 February 2023. The Complainant asked the new owner about his annual leave entitlement for 2022 but was told that while his ‘tenure’ had transferred, the previous owner was responsible for paying for any annual leave accrued in 2022. The Complainant was not sure if there had been a transfer of undertakings. The Complainant contacted the previous owner of the Respondent business on several occasions over an 8-month period in 2023 looking for his holiday pay. The owner of the Respondent business promised to make the payment but ultimately failed to do so. The Complainant then decided to refer a complaint to the WRC. The Complainant was notified by the WRC that his complaint may be out of time. The Complainant sought an extension of time in accordance with the provisions of s 41(8) of the Workplace Relations Act, 2015 on the basis that the Respondent accepted responsibility for paying him and continuously led him to believe he would be paid for the annual leave, and that this was the reason for not presenting a complaint to the WRC sooner.

There was no appearance by or on behalf of the Respondent. Notice of the hearing was issued to the  registered business address of the Respondent. I note that the hearing notice sent by the WRC was returned marked ‘gone away’. I also note that the Respondent is listed for strike off on CRO.

Relevant Law

Section 2(1) of the Organisation of Working Time Act, 1997 (“the 1997 Act”) defines the ‘leave year’ as meaning “. . . a year beginning on any 1st day of April”.

Section 20(1) of the 1997 Act provides:

“The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject . . . (c) to the leave being granted— (i) within the leave year to which it relates . . . .”

Section 23 of the 1997 Act provides for compensation on cesser of employment.

“(1) (a) Where— (i) an employee ceases to be employed, and (ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee shall, as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or she would have received had he or she been granted that annual leave.

(b) In this subsection— "relevant period" means—

(i) in relation to a cessation of employment of an employee to whom subparagraph (i) of paragraph (c) of subsection (1) of section 20 applies, the current leave year,

(ii) in relation to a cessation of employment of an employee to whom subparagraph (ii) of the said paragraph (c) applies, that occurs during the first 6 months of the current leave year—

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

(iii) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies, that occurs during the first 12 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the leave year immediately preceding the current leave year,

or

(iv) in relation to a cessation of employment of an employee to whom subparagraph (iii) of the said paragraph (c) applies that occurs during the final 3 months of the period of 15 months referred to in the said subparagraph (iii) —

(I) the current leave year, and

(II) the 2 leave years immediately preceding the current leave year . . . . ”

Section 41(6) of the Workplace Relations Act, 2015 (“the 2015 Act”) provides:

“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.” (emphasis added).

Section 41(8) of the 2015 Act provides:

“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.”

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the 1997 Act to the WRC. The established test for deciding if an extension of time should be granted for ‘reasonable cause’ is set out in the Labour Court determination in the case of Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] as follows:

“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. The claimant’s failure to present the claim within the six-month 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 not been present he would have initiated the claim in time.  In the context in which the expression reasonable appears it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time.  The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Findings:

The relevant leave year is defined by section 2(1) of the 1997 Act as a year beginning on any 1st day of April. Based on the uncontested evidence of the Complainant, I am satisfied that this complaint concerns annual leave accrued for the period 1 April 2022 until 11 February 2023. Section 20(1) of the 1997 Act makes provision for the taking of the leave within the leave year to which it relates. In accordance with s 41(6) of the 2015 Act the Complainant must refer a complaint to the WRC within 6-months of the date to which the complaint relates i.e., by 10 July 2023. The Complainant referred his complaint under the 1997 Act to the WRC on 28 November 2023. Therefore, I am satisfied that the Complainant did not present his complaint within the time limit provided for at s 41(6) of the 2015 Act. Further, with respect to s 41(8) of the 2015 Act, I am not satisfied that the test for reasonable cause has been met in this case. The Complainant outlined that the reason he delayed in presenting a complaint to the WRC was because the Respondent repeatedly told him he would be paid for the leave. I find that this reason may explain the delay but it does not excuse it. A Complainant cannot circumvent the time limits by seeking to rely on a verbal promise of the owner of the Respondent business that did not prevent him from bringing his complaint within the statutory time limit.

I decide I do not have jurisdiction to inquire into this complaint under the Organisation of Working Time Act, 1997 as it is outside of the time limit provided for in s 41(6) of the Workplace Relations Act, 2015.

Annual leave. Complaint out of time. Reasonable cause.