Complainant

Respondent

Parties

Peter  Brennan

B.C. McGettigan Limited  - The Address Connolly, Formerly The North Star Hotel

Complainant

Respondent

Representatives

Self-Represented / assisted by M Sandys -Consultant.

Mr M Hegarty, Solicitor and Ms M Hegarty, HR Consultant

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-00044846-001

29/06/2021

The Complainant had been employed as a General Manager at the Respondent Hotel from 5th February 2018 to the 19th January 2021. The employment then ended in disputed circumstances.

A reference to the WRC under the Unfair Dismissal Act 1977 – CA-00042313-001 was made on the 4th February 2021 and the Payment of Wages Act CA-00044794-001 on the 25th June 2021. Both complaints were heard on the 29th September 2021 and Decision ADJ-00031817 issued.

 A finding of Unfair Dismissal was made in the Complainants favour, but the Payment of Wages Act complaint was deemed by the Adjudicator as “Not well founded”.

The Complainant gave Oral testimony assisted by his colleague Mr. Sandys. A brief written submission was also relied upon.

In essence the case being made was that the figures being relied upon in the settlement of the case post ADJ-00031817 were seriously in error resulting in the Complainant suffering an alleged loss of some €14,666.16.

The Respondent were represented by Solicitor, Mr Hegarty assisted by HR Consultant Ms Hegarty. A detailed Oral Testimony was given by Mr Hegarty which referenced a brief written submission which had been provided.

In essence the Respondent case was that the complaints at the Hearing were effectively “res judicata” having all been decided upon in ADJ-00031817.

ADJ-00031817 issued on the 10th December 2021. If the Complainant had at that time, issues with the Decision he had the option of a Labour Court appeal within 42 days of the publication.

He had not chosen to avail of the Labour Court appeal and was now completely out of time as regards that avenue.

In cross examination the issue of ADJ-00033894 (the complaint before the current Adjudication hearing) standing as what was in effect an Appeal against Adj 31817 was strongly argued against by the Respondent. To state that a separate Complaint, on the same grounds, was equal to an Appeal against an earlier Decision had no legal standing.

3:1       The Law

Section 44, sub sections 2 &3 of the Workplace Relations Act,2015 are set out below.

Appeal to Labour Court from decision of adjudication officer

44. (1) (a) A party to proceedings under section 41 may appeal a decision of an adjudication officer given in those proceedings to the Labour Court and, where the party does so, the Labour Court shall—

(i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal,

(ii) make a decision in relation to the appeal in accordance with the relevant redress provision, and

(iii) give the parties to the appeal a copy of that decision in writing.

(b) In this subsection “relevant redress provision” means—

(i) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a complaint under that section of a contravention of a provision of an enactment specified in Part 1 or 2 of Schedule 5, the provision of that enactment specified in Part 2 of Schedule 6,

(ii) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a dispute as to the entitlements of an employee under an enactment specified in Part 3 of Schedule 5, the provision of that enactment specified in Part 2 of Schedule 6 and

(iii) in relation to an appeal from a decision of an adjudication officer under section 41 relating to a complaint under subsection (3) of that section, paragraph 2 of Schedule 2 to the Act of 2012.

(2) An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946 and stating that the party concerned is appealing the decision to which it relates.

(3) Subject to subsection (4), a notice under subsection (2) shall be given to the Labour Court not later than 42 days from the date of the decision concerned

3:2           Consideration of the evidence presented.

From the Oral Testimony of both parties, it was clear that the issue was the decision in Adj-00031817.

In questioning from the Adjudicator, the Complainants were very unclear as to why they had not appealed the Adjudication finding in the 42 days post the publication on the 10th December 2021.

From the files it was clear that the Complainant was legally represented at that time. This Solicitor subsequently retired and was not present at the Hearing on the 21st June 2024.

Adj-00033894 - CA-00044846-001 Payment of Wages (the current case) was referred to the WRC on the 29th of June 2021 four days post the Payment of Wages complaint CA-00044794-001 in Adj-00031817.

The Respondent presumed that it had been overtaken by the Hearing on Adj-00031817 and was closed. It was pointed out, in support of the Respondent viewpoint, that the Complaint was lodged on the 29th June 2021 but did not come to a WRC Hearing until the 21st June 2024 -three years later.

The Complainant was very unclear on this entire position and stated that no Appeal had been made in 2021 as they felt that a second complaint was in prospect which would allow a re-examination of the case.

3:2       Conclusions.

Leaving aside the “Lost in Space” for three years aspects of the current complaint the facts are clear cut.

Adj-00031817 examined in detail the entire case in late 2021. A decision was issued which found in the Complainant’s favour as regards Unfair Dismissal but not so on the payment of Wages Act complaint.

The Leal principle of res judicata has to apply. The issues were examined and settled in Adj-00031817 in 2021. The option was there for an Appeal under Section 44. This was not opted for by the Complainant. It is worth noting that Section 44(4) allows the Labour Court “due to exceptional circumstances” to entertain Appeals post the 42 days. No application appeared to have been made to the Court for an extension.

The argument that a second complaint was in the system and would stand as an Appel has no sound legal basis.

Accordingly, the current case ADJ-00033894 cannot be deemed to be Properly Legally Founded and has to fail.

Redundancy Payment, Payment of Wages Act, Res Judicata decision.