ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00051438
Parties:
| Complainant | Respondent |
Parties | Pauline Tuohey | Lifetime Care Limited |
Representatives | Self | No attendance |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00062703-001 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00062703-002 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00062703-003 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00062703-004 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00062703-005 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00062703-006 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00062703-007 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00062703-008 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 | CA-00062703-009 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 | CA-00062703-010 | 09/04/2024 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 | CA-00062703-011 | 09/04/2024 |
Date of Adjudication Hearing: 07/08/2024
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of theRedundancy Payments Acts 1967 - 2014 following the referral of the complaint(s)to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
All documentation was issued by the WRC to the addresses provided. This is one of a series of complaints/appeals by former employees of the Respondent with which the Respondent did not engage, whether the documentation was sent to an address in Galway or Dublin(the registered office address).
A preliminary issue of time limits for the cognisable period arises in this case.
The Complainant gave sworn evidence at the hearing.
The terms Complainant and Respondent are used to describe the parties in the main text.
Background:
The Complainant and others were informed in a communication issued by the Respondent via a Whats App message dated 05.10.23 that the business known as Lifetime Care was ceasing business on that date. Issues regarding the Revenue Commissioners and tax clearance were referenced by way of an explanation for the decision to cease trading. Apart from the Whats App message, there was no further contact by the Respondent with the Complainant regarding her unpaid wages and also her statutory entitlements. |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on 02.12.2019. She was employed as a carer. The rate of pay was 312.48 gross. Complaints were submitted for unpaid wages, holiday pay, statutory notice and statutory redundancy pay and under the Protections of Employment Act. On the matter of the time limit for submitting a complaint and the related cognisable period, I advised the Complainant at the hearing that an issue arises in relation to all complaints except that for statutory redundancy on the basis that the legislation under which the decisions are to be made provides for a six-month period in which complaints are to be submitted with a possible extension to twelve months in certain circumstances. In this case, as notice of termination was received on 5 October 2023,the six-month period commenced on that date expiring on April 4th, 2024. Consequently, the complaints on complaint form submitted on April 9th, 2024, fell outside the initial six-month period, except for the redundancy appeal. The Complainant said she recalled completing a form in November 2023 and hitting the button to send the form. She agreed to provide any supporting documentation indicating communications with the WRC in November 2023 and/or between that date and the date a manual form was submitted on April 9th, 2024. Initially the Complainant submitted records of telephone calls which may have been with the WRC in 2024. However, these all occurred after April 2024(there was a delay in scheduling the hearing of the complaint as an earlier date was cancelled by the WRC and then rescheduled for the current date following representations. I understand any delay was due to concerns regarding the correct address for the Respondent and was unrelated to the date of receipt of the complaint form). In addition to the telephone records, the Complainant resubmitted the page on the manual complaint form on which she had written submitted in November 2023 on the original of the form. Following a further clarifying query to the Complainant reminding her of the information required, i.e. evidence of submitting a complaint to the WRC in November 2023. The Complainant then submitted a screenshot of contacts with the WRC on 22 November 2023. In her covering email the Complainant stated that she believed she had submitted the online form in version 15.9 on November 22nd and was not aware of any issue until she contacted the WRC on April 2nd, 2024, when she was advised to submit a further form and received a manual form which she submitted and is the one received by the WRC for this hearing April 9th, 2024. At my request, the WRC ran a check on their system. They confirmed that no form was received from the Complainant on 22 November 2023; that as many of the essential pieces of information required(fields) were not complete, the form could not have been submitted; the available version of the form still has the ‘submit’ field open on the form and when a complaint form is received a confirmation acknowledgement issues with twenty minutes or so. There is no record of receipt of a complaint from the Complainant on either 22nd or 23rd of November, which was also checked. The WRC response was forwarded to the Complainant for her information. |
Summary of Respondent’s Case:
The Respondent did not engage with the Workplace Relations Commission in relations to these matters at any stage. |
Findings and Conclusions:
CA-00062703-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 The appeal by the Complainant against the decision of the Respondent not to pay her statutory redundancy entitlements is well founded. CA-00062703-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 The Decision of an Adjudication Officer is limited to appeals against non-payment. This reference is therefore treated as a duplicate of CA-00062703-001 CA-00062703-003 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 The Decision of an Adjudication Officer is limited to appeals against non-payment of statutory redundancy pay. This reference is therefore treated as a duplicate of CA-00062703-001 The following complaints fall to be considered within the time limits set out in Section 41 of the Workplace Relations Act 2015: CA-00062703-004 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00062703-005 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00062703-006 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00062703-007 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00062703-008 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 CA-00062703-009 Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 CA-00062703-010 Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 CA-00062703-011 Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 (6) 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. (8) 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. |
The Complainant maintains the WRC made an error in dealing with her complaint form in November 2022. However, the evidence of the incomplete form and the explanation provided to me by the WRC does not support the contention by the Complainant. While appreciating that the completion of an online form may be challenging especially when done for the first time, the documentation which I have examined suggests that either the Complainant did not complete the form online in November 2023, or she mistakenly believed she had done so. And if it was the latter, as seems likely, then there was a long period before she followed up with the WRC. On the 2nd of April she was still within the time limit of six months under subsection (6) but a week later, on April 9th she was outside of the time limit. The Complainant therefore had a period of a few days when she knew there was no form on record with the WRC within which she could have submitted a complaint ‘on time’. In the circumstances I do not consider that reasonable cause exists such as to extend the time limit under subsection (8) of Section 41 of the 2015 Act. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
CA-00062703-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 The appeal against the failure of the Respondent to pay statutory redundancy pay to the Complainant is upheld. Provided this is insurable employment for the purposes of the social welfare acts, the following are the relevant details for the purposes of calculating the payments due to the Complainant: Date of Commencement 02.12.2019 Date of termination 05.10.2023 Rate of Pay 312.48 gross CA-00062703-002 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 Duplicate of CA-00062703-001 CA-00062703-003 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 Duplicate of CA-00062703-001 CA-00062703-004 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973. This complaint is not well founded as the Complainant did not submit the complaint within the time limit set out in Section 41(6) of the Workplace Relations Act 2015 and reasonable cause does not exist to extend the time limit as required by subsection (8). CA-00062703-005 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 Duplicate of CA-00062703-004 CA-00062703-006 Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 Duplicate of CA-00062703-004 CA-00062703-007 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 This complaint is not well founded as the Complainant did not submit the complaint within the time limit set out in Section 41(6) of the Workplace Relations Act 2015 and reasonable cause does not exist to extend the time limit as required by subsection (8). CA-00062703-008 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 Duplicate of CA-00062703-007 CA-00062703-009 Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 This complaint is not well founded as the Complainant did not submit the complaint within the time limit set out in Section 41(6) of the Workplace Relations Act 2015 and reasonable cause does not exist to extend the time limit as required by subsection (8). CA-00062703-010 Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 Duplicate CA-00062703-009 CA-00062703-011 Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977 Duplicate CA-00062703-009 |
Dated: 27th August 2024.
Workplace Relations Commission Adjudication Officer: Janet Hughes
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