ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051017

Parties:

Complaint:

Date of Adjudication Hearing:  01/08/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint pursuant to Section 6 of the Payment of Wages Act 1991 was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 14th March 2024.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was heard at Lansdowne House on 1st August 2024.  The Complainant was self-represented and the Respondent was represented by Mary-Paula Guinness BL instructed by MDM Solicitors.  Written submissions were received on behalf of both Parties.  The Complainant was also furnished with the requisite statutes and law pertaining to his complaint.  The hearing was held in public and the Parties were made aware that their names would be published within this decision. 

The Respondent raised two preliminary objections to jurisdiction, namely (1) that this complaint is out of time including any extension of time and (2) there was no employment relationship between the Parties.  I directed that the first preliminary issue would be heard as it goes to jurisdiction to hear the second preliminary issue and substantive complaint.  If finding for the Respondent, that would dispose of the complaint and a decision would issue accordingly.  If finding in favour of the Complainant, a further hearing would be scheduled with reasons reserved to the decision.  As there were no material facts in issue pertaining to this preliminary issue, sworn evidence was unnecessary.

Preliminary Issue:

Summary of Complainant’s Case:

The Complainant contended that he had been employed by the Respondent on his fishing vessel between 28th May 2022 and 17th September 2022.  As part of his agreement with the Respondent, weekly €100 deductions for insurance cover were made from monies paid to him as being a legal requirement.  On 17th September 2022, the vessel sank whilst the Complainant was on board.  No detail was provided at the hearing but fortunately the Complainant survived and it seems that the vessel was salvaged.  The Complainant ceased working for the Respondent on that date.  He accepted that the last deduction from monies paid to him was made on 18th September 2022.  Upon engaging a Solicitor to bring a personal injuries claim against the Respondent in or around the end of March / April 2023, the Complainant became aware that there was no insurance cover in place.  He contended that because the deductions had not been used for the insurance cover as agreed, they constituted unlawful deductions from his pay in contravention of Section 5 of the Payment of Wages Act 1991.  He referred this complaint to the WRC on 14th March 2024, some 18 months after the last deduction and the working relationship had ceased.  In relation to the Respondent’s contention that this complaint was out of time, he submitted that time began to run from the date of his knowledge that the deductions were unlawful, being some 11 months prior to referral to the WRC.  He submitted that the reason for delay in referral of this complaint was difficulty downloading the form.

Summary of Respondent’s Case:

On behalf of the Respondent, it was contended that the WRC did not have jurisdiction to hear this complaint as it had been referred outside of the 6-month time limit provided by Section 41(6) of the Workplace Relations Act 2015 and given that an extension of time may only be granted up to 12 months under Section 41(8) of the Act, it was statute-barred.  A bank statement confirmed that the last deduction from monies paid by the Respondent to the Complainant was 18th September 2022.

Findings and Conclusions:

The Respondent submits that as this complaint had been referred outside of the statutory 6-month time limit provided by Section 41(6) of the Workplace Relations Act 2015 and given that an extension of time may only be granted up to 12 months under Section 41(8) of the Act, it is absolutely statute-barred.  The Complainant contends that time began to run from the date of knowledge and is therefore within time subject to an extension being granted for reasonable cause.

The time limit for referral of a complaint under the Payment of Wages Act 1991 is governed by Section 41 of the Workplace Relations Act 2015 and entails a 6-month time limit from the date of contravention extendable up to 12 months if reasonable cause is shown.  Specifically, Section 41(6) of the Workplace Relations Act 2015 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.  Section 41(8) further 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.” 

A contravention under Section 5 of the Payment of Wages Act 1991 arises from an unauthorised deduction from wages as follows: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.”  In the instant case it is not in issue that the date of the last deduction from monies paid to the Complainant and thus last possible date of contravention was 18th September 2022.  As per my decision in ADJ-00050230, the wording of Section 41(6) of the Workplace Relations Act 2015 is very specific and the alleged contravention in the instant case is ‘unlawful deductions from pay’ contrary to Section 5 of the Payment of Wages Act 1991.  Unlike other legislation, the Workplace Relations Act 2015 does not make provision for referral of a complaint from the date of knowledge of an alleged contravention and/or where delay in referral of a complaint to the WRC is due to a misrepresentation by the employer such as Section 77(6) of the Employment Equality Act 1998. 

As the last possible date of alleged contravention arose on 18th September 2022 and this complaint was referred to the WRC on 14th March 2024, this complaint has been referred to the WRC some 18 months since the last date of contravention.  Accordingly, I do not have jurisdiction to either extend time and/or investigate same.  It follows that consideration of an extension of time under Section 41(8) of the Workplace Relations Act 2015 or the second preliminary objection does not arise.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint.  I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, I do not have jurisdiction to investigate this complaint. 

Dated:   14/08/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Deduction from wages contrary to Section 5 of the Payment of Wages Act 1991 – no provision for date of knowledge of alleged contravention under the Workpla