CORRECTION ORDER
ISSUED PURSUANT TO SECTION SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision ADJ-00051044 issued on 24-07-2024 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051044
Parties:
| Complainant | Respondent |
Parties | Darren O'Donohoe | My Safe Drive Limited Cameramatics |
Representatives | Susan Martin of Martin Solicitors | Patricia Canty of JW O’Donovan Solicitors |
Complaint(s):
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-00062532-001 | 01/04/2024 |
Date of Adjudication Hearing: 23/07/2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
Mr O'Donohoe worked for the Respondent business as the Chief Operating Officer (“COO”). He joined the Respondent in September 2021 to help grow the business and his package included salary, bonus and significant share options. The parties later experienced professional differences as to the focus and strategy of the business and Mr O’Donohoe exited the business on amicable terms on the 5th of May 2023 following a conversation with the CEO. The Complainant sought to exercise his share options and purchase shares at a discounted rate at this time. The Complainant transferred €22,704 to the Respondent in July 2023 expecting to receive shares he values at €225,000. The Respondent initially promised to transfer the share certificates to the Complainant who was supposed to receive them on by the 26th of August 2023. In September, October and November 2023 the Respondent continued to promise to deliver these share certificates but on the 11th of December 2023 it changed position and wrote to the Complainant notifying him that he was not considered a “good leaver” under the share scheme and as such they would not be transferring the shares. The Complainant disputes this position and has raised a complaint under the payment of wages act, dated the 1st of April 2024, seeking payment of €225,000. A hearing was held on the 23rd of July 2024 but had to be adjourned after the Complainant’s case completed, this was due to time constraints. The Respondent had raised time issues and as such I determined that I would make a preliminary decision on that issue before determining if we needed to return to hear the Respondent’s case. |
Summary of Complainant’s Case:
The Complainant attended represented by Ms Susan Martin Solicitor who made oral and written submissions on his behalf. The Complainant gave evidence and was cross examined. He had genuinely thought that he would be paid the shares and had been assured of the same, until the 11th of December 2023., when the Respondent abruptly changed position. The Complainant was extremely shocked by this as he had worked hard for the Respondent and had left on good terms. His solicitor began writing to the Respondent but it took time to receive replies. |
Summary of Respondent’s Case:
The Respondent management team attended the hearing represented by Ms Patricia Canty Solicitor. She has raised a number of preliminary issues including the time limits set out in Section 41(6) of the Workplace Relations Act 2015. |
Findings and Conclusions:
As outlined by the Respondent’s solicitor, Section 41 (6) of the Workplace Relations Act provides a time limit of 6 months from the date of contravention of the relevant act. For the purposes of this complaint that date is 26th of August 2023, at which point the share certificates should have issued to the Complainant. This complaint was not initiated until the 1st of April 2024, a little over 7 months after. Section 41 (8) of the Workplace Relations Act provides me the option of extending the time limit and bringing in the complaint within time. The Labour Court has issued extensive decisions on this issue. One decision I feel to be particularly relevant is Salesforce.com v. Leech EDA1615 extracts of which I have inserted below. It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay (my emphasis). Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. On review of the correspondence I can see Complainant had reasonable cause to delay issuing complaints in September/October/November 2023. He was being actively assured that the matter was in hand and that he had the receipts and had paid for the shares. However, on the 11th of December 2023 the Respondent made their position entirely clear. They would not issue the share certificates. I note that they clarified that position within the cognisable period of 6 months. The actual reason for the delay, in respect to these statutory time limits, was that the Complainant was trying to resolve the matter amicably with the assistance of his solicitor who was writing to the Respondent. Only after their attempts to settle the matter were rebuffed did they submit the complaint, which was by then over a month out of time. While I understand how that approach could seem reasonable it is not a cause preventing them from issuing complaints. I note the position of the Labour Court to a similar issue in Business Mobile Security Services Limited T/A Seneca Limited T/A John McEvoy EDA1621 and DCC v Skelly DWT212 where Complainants first sought to address a matter through their employer’s grievance/IR processes and when that failed sought time extensions which were rejected. In the circumstances I do not believe the Complainant has established reasonable cause for delay and the complaint is out of time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
Dated: 24-07-2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051044
Parties:
| Complainant | Respondent |
Parties | Darren O'Donohoe | My Safe Drive Limited Cameramatics |
Representatives | Susan Martin of Martin Solicitors | Patricia Canty of JW O’Donovan Solicitors |
Complaint(s):
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-00062532-001 | 01/04/2024 |
Date of Adjudication Hearing: 23/07/2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
Mr O'Donohoe worked for the Respondent business as the Chief Operating Officer (“COO”). He joined the Respondent in September 2021 to help grow the business and his package included salary, bonus and significant share options. The parties later experienced professional differences as to the focus and strategy of the business and Mr O’Donohoe exited the business on amicable terms on the 5th of May 2023 following a conversation with the CEO. The Complainant sought to exercise his share options and purchase shares at a discounted rate at this time. The Complainant transferred €22,704 to the Respondent in July 2023 expecting to receive shares he values at €225,000. The Respondent initially promised to transfer the share certificates to the Complainant who was supposed to receive them on by the 26th of August 2023. In September, October and November 2023 the Respondent continued to promise to deliver these share certificates but on the 11th of December 2023 it changed position and wrote to the Complainant notifying him that he was not considered a “good leaver” under the share scheme and as such they would not be transferring the shares. The Complainant disputes this position and has raised a complaint under the payment of wages act, dated the 1st of April 2024, seeking payment of €225,000. A hearing was held on the 23rd of July 2024 but had to be adjourned after the Complainant’s case completed, this was due to time constraints. The Respondent had raised time issues and as such I determined that I would make a preliminary decision on that issue before determining if we needed to return to hear the Respondent’s case. |
Summary of Complainant’s Case:
The Complainant attended represented by Ms Susan Martin Solicitor who made oral and written submissions on his behalf. The Complainant gave evidence and was cross examined. He had genuinely thought that he would be paid the shares and had been assured of the same, until the 11th of December 2023., when the Respondent abruptly changed position. The Complainant was extremely shocked by this as he had worked hard for the Respondent and had left on good terms. His solicitor began writing to the Respondent but it took time to receive replies. |
Summary of Respondent’s Case:
The Respondent management team attended the hearing represented by Ms Patricia Canty Solicitor. She has raised a number of preliminary issues including the time limits set out in Section 41(6) of the Workplace Relations Act 2015. |
Findings and Conclusions:
As outlined by the Respondent’s solicitor, Section 41 (6) of the Workplace Relations Act provides a time limit of 6 months from the date of contravention of the relevant act. For the purposes of this complaint that date is 26th of August 2023, at which point the share certificates should have issued to the Complainant. This complaint was not initiated until the 1st of April 2024, a little over 7 months after. Section 41 (8) of the Workplace Relations Act provides me the option of extending the time limit and bringing in the complaint within time. The Labour Court has issued extensive decisions on this issue. One decision I feel to be particularly relevant is Salesforce.com v. Leech EDA1615 extracts of which I have inserted below. It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay (my emphasis). Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. On review of the correspondence I can see Complainant had reasonable cause to delay issuing complaints in September/October/November 2023. He was being actively assured that the matter was in hand and that he had the receipts and had paid for the shares. However, on the 11th of December 2023 the Respondent made their position entirely clear. They would not issue the share certificates. I note that they clarified that position within the cognisable period of 6 months. The actual reason for the delay, in respect to these statutory time limits, was that the Complainant was trying to resolve the matter amicably with the assistance of his solicitor who was writing to the Respondent. Only after their attempts to settle the matter were rebuffed did they submit the complaint, which was by then over a month out of time. While I understand how that approach could seem reasonable it is not a cause preventing them from issuing complaints. I note the position of the Labour Court to a similar issue in Business Mobile Security Services Limited T/A Seneca Limited T/A John McEvoy EDA1621 and DCC v Skelly DWT212 where Complainants first sought to address a matter through their employer’s grievance/IR processes and when that failed sought time extensions which were rejected. In the circumstances I do believe the Complainant has established reasonable cause for delay and the complaint is out of time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is not well founded. |
Dated: 24-07-2024
Workplace Relations Commission Adjudication Officer: David James Murphy
Key Words:
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