Complainant

Respondent

Parties

Ben  Whelan

Metron Stores Limited t/a Iceland (in liquidation)

Representatives

Cristina Diamant, Independent Workers Union

N/A

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-00060142-001

21/11/2023

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

CA-00060439-001

08/12/2023

In March 2021, the Complainant commenced employment as a Retail Assistant in the Respondent’s Coolock branch. On 8 July 2021, the Complainant was offered a permanent contract. In June 2022, the Complainant was promoted to Duty Manager. The Complainant earned €15 per hour and worked approximately 40 plus hours per week.

The Complainant resigned from his position “in the first week of March” and his last day of employment was 12 March 2023. The Complainant submits that the Respondent failed to pay him for his accrued annual leave; and that the Respondent failed to pay him in full for his last two weeks. The Complainant submitted that he is owed approximately €1,513 for his accrued annual leave and that he is owed approximately €100 in pay.

The Complainant provided written and oral submissions.

The Complainant submitted that as Duty Manager, he, inter alia, made rosters, worked tils and organised the stock rooms. He submitted that he enjoyed his job. He submitted that issues began to arise concerning food orders in January 2023. He further submitted that staff were subsequently told by the Area Manager that “Homesavers” were taking over from “Iceland”. He received nothing about this formally.

The Complainant submitted that he resigned from his job and that his last day of work was 12 March 2023. The Complainant submitted that his last payment did not include payment for his accrued annual leave. He further submitted that he did not receive payment for his final two weeks of work.

The Complainant submitted that he did not file his Complaint Forms sooner, as he was trying to resolve the matter with his managers until April 2023. The Complainant provided copies of text messages with his managers up until 11 April 2023.

There was no attendance by or on behalf of the Respondent.

On 19 December 2023, during the Case Management Conference, the Respondent’s correct name was confirmed and it is reflected in this Decision.

In a letter from the WRC dated 29 April 2024, the Respondent was informed of the details of the Hearing to take place on 27 June 2024. The same letter also set out the procedure regarding postponement requests.

On 26 June 2024, JW Accountants emailed the WRC. They confirmed that Mr. Joseph Walsh was appointed Liquidator of the Company (the “Liquidator”) on 7 September 2023, by Order of Mr. Justice Quinn of the High Court. They further confirmed that as this complaint relates to matters which predate the Liquidator’s appointment, he is not familiar with the background to the complaint and therefore is not in a position to assist in the Hearing.

In the circumstances, I am satisfied that the Respondent was on notice of the Hearing and decided not to attend.

Preliminary Issue – Time Limits:

The Law:

Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) 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.”

This six-month time period can be extended, where “reasonable cause” is demonstrated. To this end, section 41(8) of the WRA 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.”

Case Law:

The established test for “reasonable cause” for the purpose of granting an extension of time is that set out by the Labour Court in Cementation Skanska v. Carroll, DWT0338 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.”

The onus is therefore on the Complainant to identify the reason for the delay and to establish that the reason relied upon amounts to “reasonable cause” for that delay.

I note that in Dr. Frank Whelton t/a Whelton Dental v. Elaine Corkery, TUD247, dated 8 May 2024 (the “Whelton Case”), the Labour Court held:

“It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. While the reasons submitted by the Complainant may explain the delay, the Court finds that they do not provide afford a justifiable excuse for the delay. The Complainant is to be commended for trying to resolve matters directly with her employer, however, this Court has consistently found that a decision to delay referring a statutory complaint for the purposes of exhausting an alternative means to resolve a dispute does not constitute reasonable cause for the delay.

[…]

The Labour Court is a creature of statute, and its powers and duties are derived solely from statute. The Court cannot assume a jurisdiction which is not conferred to it. In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case.”

Findings and Conclusion:

CA-00060142-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991:

The Complainant’s last day of employment was 12 March 2023. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, the Complainant had until 11 September 2023 in which to file his complaint.

The Complainant filed his Complaint Form concerning CA-00060142-001 on 21 November 2023.

The Complainant indicated that he delayed in bringing his complaints as he was trying to resolve the matter with his managers until April 2023. However, I note that in the Whelton Case, the Labour Court held that it has “consistently found that a decision to delay referring a statutory complaint for the purposes of exhausting an alternative means to resolve a dispute does not constitute reasonable cause for the delay.”

In the circumstances, I find that the Complainant has not demonstrated “reasonable cause” to extend the six-month time period. Therefore, I find that the complaint is out of time and I cannot entertain it. Consequently, the complaint is not well founded.

CA-00060439-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991:

The Complainant’s last day of employment was 12 March 2023. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, the Complainant had until 11 September 2023 in which to file his complaint.

The Complainant filed his Complaint Form concerning CA-00060439-001 on 8 December 2023. 

The Complainant indicated that he delayed in bringing his complaints as he was trying to resolve the matter with his managers until April 2023. However, I note that in the Whelton Case, the Labour Court held that it has “consistently found that a decision to delay referring a statutory complaint for the purposes of exhausting an alternative means to resolve a dispute does not constitute reasonable cause for the delay.”

In the circumstances, I find that the Complainant has not demonstrated “reasonable cause” to extend the six-month time period. Therefore, I find that the complaint is out of time and I cannot entertain it. Consequently, the complaint is not well founded.

CA-00060142-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991:

This complaint is out of time and I cannot entertain it. Therefore, I decide that the complaint is not well founded.

CA-00060439-001 – Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991:

This complaint is out of time and I cannot entertain it. Therefore, I decide that the complaint is not well founded.

Payment of Wages Act 1991, Out of time.