Complainant

Respondent

Parties

Andrew O'Connor

Eolas Recruitment

Complainant

Respondent

Anonymised Parties

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Representatives

Niamh Ní Cheallaigh, IBEC

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-00060858-001

05/01/2024

The complainant submitted a claim on 5th of January 2024 in respect of his employment with the respondent which he states commenced on 13th April 2023 and ended on  2nd June 2023.  The within claim relates to the alleged non-payment of one months’ notice which the complainant submits he was entitled to under his contract with the respondent.     The complainant submits that the amount of the non-payment amounts to € 16,800.00.

At the outset the Respondent representative raised two preliminary objections as to my jurisdiction in regard to time limits in the first instance and secondly in regard to an assertion that there was no employer employee relationship in existence between the complainant and respondent as they submit that Complainant was not employed by the Respondent under a contract of employment.

In circumstances whereby the jurisdictional issue of time limits may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. 

The complainant submits as follows

that through Continuas Consultancy Limited he took on a new contract with a Bank  through an agency (Eolas) . The agency is Eolas, based in Ireland.  The complainant submits that he started this contract on 17th April 2023 and about 4 weeks into the contract, he highlighted to the agency that he was struggling with the work as it was a very fragmented workstream and also the fact that he was based remotely.   In addition to this the complainant submitted that he was in an environment that was not clearly explained to him, and it was his approach to get familiarity with the project and the architecture, this was after a comment that he received via a third party and was from the PMO (Project Manager Officer) saying that he was not connected with the project, this came from.

He submits that in an effort to address this, which incidentally the complainant thought was unfounded as he has 30 + years practicing both Project Management and Disaster Recovery, the complainant had a series of meetings with his line manager in the bank. This was collectively agreed as his manager too thought that the complainant was not grasping the project. These meetings continued.

 On the last week of his full week of working there the complainant cancelled two of these sessions purely on the basis that he wanted to get on with prioritised work, which he had been given. On the Wednesday the complainant was asked to produce work for Friday (2nd June 2023), which he did, and his manager said was not satisfactory.   Based on the fact that no guidance, and looking at previously published examples, the complainant thought it was good.   On Friday 2nd June 2023 the complainant and his manager had a stand-up call in the morning to discuss this work.

It is submitted that the meeting turned into a review of the complainants standing in the project which he admitted  he was struggling with. The meeting ended with no conclusion, other than to carry on with the work.    Mid-morning the complainant called the agent and told him of the meeting, and during this call the agent said that the Bank wanted to terminate his contract immediately.

Meetings that the complainant had planned for the afternoon did not go ahead under the advice of the agent.    That was the last day that the complainant worked for Eolas/ the Bank.

All loaned technology (Laptop) was returned in accordance with the terms and conditions of the contract.    It is submitted that Continuas Consultancy Limited is now seeking to claim the months’ notice that the complainant, Mr O'Connor / Continuas Consultancy Limited was supposed to have that was written in the contract.

The Respondent submits that

that the complaint in this instance is statute barred, having been submitted on 5 January 2024.  The Complainant had a contract for service and that contract for service was terminated on 2 June 2023. The respondent further submits that the time period for this submitted claim would date from 6 July 2023 to 5 January 2024 and that the within claim is out of time as the contract terminated in June 2023.

The Respondent submits that there is no discretion under the Act for an Adjudication Officer to further extend the time limit past the 6-month period, unless “reasonable cause” is proven.

It is submitted that the Acts refer to “reasonable cause” as permitting an extension of the statutory time-limits.  The respondent refers to Employment Appeals Tribunal in Byrne v PJ Quigley Ltd [1995] ELR 205 in which the meaning of “exceptional circumstances” was considered.     In addition, it is submitted that the Labour Court has repeatedly emphasised that the term “exceptional” is “an ordinary familiar English adjective and not a term of art”: Jennifer Murphy v Aldi Stores (Ireland) Limited (EET043) (2004).

The respondent submits that no such ‘reasonable cause’ has been put forward by the Complainant nor an explanation for his delay in submitting the claim form other than that he was “unaware of the time limit”.

The Respondent also submits the Workplace Relations Commission is also precluded from hearing this case, as the statutory preconditions necessary for the Complainant to seek relief under this statute are not satisfied. Specifically, the respondent submits that the Complainant has never been employed by the Respondent under a contract of employment as required by the definition of employee under Section 1 of Payment of Wages Act 1991.

The respondent submits that the Complainant is not and was not at any time an employee of the Respondent company and therefore, the provisions of the Payment of Wages Act, 1991 do not apply. The Respondent refers  to the Employment Appeals Tribunal determinations in the cases of Grezegorz Sulek and David Lloyd Riverview Ltd UD762/2010 , and John P Dolan and Ballyliffin Golf Club UD1895/2010 in this regard.

The respondent submits that the Complainant was never an employee of the Respondent company, but that he worked for Continuas Consultancy Limited, a company with whom the Respondent have a contract for service. The Respondent compensated his employer for his time, while the company continued to pay his salary. The Respondent also refers to the recent Supreme Court (SC) Decision in The Revenue Commissions v Karshan (Midlands) Ltd t/a Domino’s Pizza in this regard.

I note the Complainant filed his complaint with the WRC on 5 January 2024.  Therefore, the cognisable period dates from 6 July 2023 to 5 January 2024.  I note that the contract was terminated on 2nd of June 2023.

My jurisdiction to hear this complaint is set out in section 41 of the Workplace Relations Act, 2015 which provides as follows:

“…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.” 

Subsection 8 permits me to extend the time out by a further 6 months where reasonable cause is identified. 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six 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 matter of statutory time limits was raised with the complainant in correspondence from the WRC in advance of the hearing and again at the hearing of the matter and the complainant was given an opportunity to provide reasons for the delay and to seek an extension of the time limits.

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay.  It is a matter for the complainant to establish that there is reasonable cause for the delay.  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. 

It is well established that Cementation Skanska Ltd v Tom Carroll DWT0338 is the seminal case in deciding the issue.  In that case, the Labour Court provided its view of the standard that should be applied in applications for time extensions under the grounds of “reasonable cause” when the Court stated:

  “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 complainant in outlining the reasons for the delay in submitting his claim advised that the reasons were two-fold.  He submitted that :

In the first instance having been given immediate notice with no notice period served and the immediate cessation of funds to the company, this sent the precarious finances of the company into an immediate downward spiral.   As a result of this and due to the company and individuals putting numerous bids for other available contracts to shore up the finances of the company, little or no time was considered for delayed action that was eventually taken with the WRC.

In addition, the complainant advised that the company spent an excessive amount of time on seeking legal advice for this case.    He stated that in the initial stages it took time even to establish if we had a case. The complainant added that after extensive searching in the United Kingdom for a lawyer with experience in legal matters of employment in the Irish Republic, the company were repeatedly thwarted with false promises of certain legal entities being able to help them.   The complainant added that this took a very long amount of time, approximately four and a half months.    He advised the that having realised that there was no UK based legal advice available to assist, legal representation was then sought from within the Republic of Ireland and again after extensive searching for a legal entity that had experience in employment and work-related legal matters, unfortunately time had further elapsed. The complainant submitted that this was compounded by the fact that significant delays were encountered by response times from our legal representation.  The complainant stated that this was exasperated by the fact that the chosen organisation for legal representation failed to notify the claimant, of the six-month period in which to claim.

The respondent at the hearing submitted that the Complainant availed of legal advice in respect of this matter and therefore should have been aware of the time limits.  

While I note the Complainants assertion that he had difficulty finding a solicitor with knowledge of Irish employment law I also note that he made contact with such solicitor in July 2023 and that communications continued between him and that solicitor up to December 2023.

I also note the complainants claim that he was unaware of the time limits, however it has been well established in case law that ignorance of the law cannot be accepted as excusing a failure to comply with a statutory time limit.

Having considered the evidence adduced by the complainant in respect of this matter I find the reasons advanced by the complainant do not explain or justify the delay, in lodging his complaint outside the time limit in line with the test set out in the well-established Labour Court decision of Cementation Skanska.   Therefore, I conclude on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for an extension of the time limits.  Therefore, I find I have no jurisdiction to determine the substantive case and I declare this claim  to be not well founded.   Accordingly, I am satisfied that in the circumstances there is no there is no requirement for me to consider the second preliminary issue raised by the Respondent.

For the reasons stated above I find I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I declare this claim to be not well-founded.