PWD2453

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044452 (CA-00054882-004)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991. The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. 

 The following is the Court's Decision

DECISION:

This is an appeal by Huseyin Turkay against a Decision of an Adjudication Officer (number ADJ-00044452, CA-00054882-004) under the Payment of Wages Act, 1991 (“The Act”) against his former employer Pamukkale Trading Co Limited Anatolia Cafe and Restaurant that his complaint was submitted out of time.

Huseyin Turkay referred his complaint under the Act to the Workplace Relations Commission (WRC) on 3 February 2023 some 11 months after he left his employment in February 2022. The Adjudication Officer found that the complaint was out of time.

Huseyin Turkay appealed that decision to the Labour Court. A hearing was held in Dublin on 4 July 2024.

A preliminary matter was raised by the Respondent in relation to the time limits under the Act for lodging a complaint.

Rule 34 of the Labour Court Rules provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

By agreement with the parties, the Court proposed that it would hear and decide the preliminary matter in the first instance. It advised the parties if it decided that the complaint was lodged to the WRC within time, a further hearing would be scheduled to consider the substantive appeal. If the Court decided that the complaint was lodged outside the time limits set down in the Act, the appeal would be out of time and statute barred.

The Court heard submissions from both parties on the preliminary matter of time limits. The Complainant was assisted with a Turkish language interpreter at the hearing. An opportunity was afforded the parties to give oral evidence. No witness testimony was proffered by either party.

For ease, the parties are referred to in this Determination as they were at first instance. Hence, Huseyin Turkay is referred to as “the Complainant” and Pamukkale Trading Co Limited Anatolia Cafe and Restaurant as “the Respondent”.

Background

The Complainant was granted an employment permit to work with the Respondent effective from 30 July 2021 and commenced employment on 21 August 2021. He left the employment of the Respondent towards the end of February 2022. He lodged a complaint under the Act to the Workplace Relations Commission (WRC) on 3 February 2023.

Position of the Complainant

The complaint form was received by the Workplace Relations Commission on 3 February 2023. The Complainant’s failure to present his complaint in time was due to “reasonable cause”. He was not able to present his complaint within the statutory 6-month period, or indeed any earlier, due to his extenuating circumstances which made him particularly vulnerable.

The Complainant had very limited English; he was identified as a presumed victim of human trafficking; he was suffering from moderate to severe psychological distress and he was not aware of his employment rights or how to pursue potential breaches of such rights.

The Complainant arrived in Ireland in August 2021 to work for the Respondent and was dependent on the Respondent for work, food, transportation and accommodation. His native language is Turkish, and he speaks and understands English very poorly. The Complainant used freely available online translation services in an attempt to contact the Department of Justice by email on 23 December 2021, however his email was not responded to, and he was unaware at the time that he had directed his query to the wrong government department.

On 26 February 2022 the Complainant sought the assistance of An Garda Síochána and was identified as a presumed victim of human trafficking. He was consequently treated for psychological distress. He was assisted by An Garda Síochána to leave his position with the Respondent and to seek safety in late February 2022.

The Complainant was referred to the HSE Anti Human Trafficking Team on 28 February 2022 as a presumed victim of human trafficking for labour exploitation. The Complainant was referred to a Clinical Psychologist who reported his clinical score to be inside the moderate to severe range of psychological distress.

The Complainant has been reviewed regularly by his GP because of the emotional and psychological impact of his period working for the Respondent. 

The Complainant had no knowledge of Irish employment law. After pressing health, social and immigration issues were addressed, he met with a legal representative who could only assist him with criminal matters. In September 2022 the Complainant contacted the Migrant Rights Centre Ireland (MRCI), a non-governmental organisation which provides support to migrant workers and their families. MRCI is not a practising law centre and does not provide legal advice.

The Complainant did not receive legal advice in relation to his employment rights until after he had submitted the complaint form in February 2023.

The Complainant was unable to submit his complaint any sooner due to his particular vulnerabilities. The Complainant has a right to access justice and has a good arguable case so should be afforded the opportunity to make his case for an effective remedy. He has provided cogent reasons which both explain and afford an excuse for the delay in bringing this complaint.

The WRC has granted extensions of time in A Fisherman v. A Fisheries Company ADJ-00018491, A Fisherman v. A Fisheries Company ADJ-00018480, and A Deckhand v. A Fishing Company ADJ-00009463, where the complainants had very limited English, were not aware of their employment rights and, in the latter case, was potentially a trafficked individual.

The WRC and the Labour Court have granted time extensions where health issues prevented a complaint from being made within the statutory period, as in Avoca Handweavers Limited v Carol Ann O’Keefe (EET146) A Sales Manager v. a Multinational Company (ADJ-00039112) and A Shift Manager v. A Fast Food Franchisee (ADJ-00000187). 

In Rezmerita Ltd v Morkis DWT 17/2010 and Craigfort Taverns v Hubacek DWT 49/2010 the Labour Court took into account the fact that foreign nationals could not be expected to understand the nature or detail of the process through which their rights might be vindicated.

This Court is reminded that as an identified victim of human trafficking, the Complainant has the right to an effective remedy, and there is a corresponding positive duty on this Court arising from European Union law and international human rights law to take the steps within its power to facilitate such a remedy where it sees fit. 

Position of the Respondent

The Complainant had not carried out any work for the Respondent since 27 February 2022. The Complainant’s WRC Complaint Form was lodged on 3 February 2023. His claims are out of time and the Labour Court lacks jurisdiction in relation to those complaints.

The test for deciding if an extension of time can be granted for reasonable cause is well established by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, which reflectedthe decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30.  The grounds relied upon by the Complainant in seeking to extend time are firstly denied, and in the circumstances of this case do not constitute reasonable grounds to extend time.

Level of English

The Complainant’s English was at a low level; however, he has shown that he is adept in using technology and in particular online translation tools. The Complainant was able to navigate Irish Government websites before arriving in Ireland. In December 2021, he contacted the Department of Justice, using a translation App. On 23 March 2022, he posted a note on a Facebook Social media website seeking employment, in English. He has had access to an interpreter on several occasions.

Alleged victim of human trafficking

The Complainant has alleged that he was a victim of human trafficking. This is denied and unproven. The assertions that the Complainant was subjected to threats, verbal abuse harassment and degrading treatment are denied. The assertion that he was particularly vulnerable is denied. The facts are to the contrary. The Complainant was recruited following his application in response to an advert to work for the Respondent. The Respondent followed a proper process of application for a visa and work permit. The Complainant consistently followed up with the Respondent in relation to this process.  The Respondent advanced monies to the Complainant before he arrived in the Country.

Furthermore, the Complainant returned to Turkey on annual leave on 6 February 2022 and returned on 20 February 2022. The Complainant was free to remain in Turkey if he wished but chose to return. This is not consistent with his allegation of human trafficking.

Psychological Distress

There is no medical evidence to excuse the failure to issue his WRC complaint or make a causal connection between his health and failure to lodge his complaint in time.  The only letter that deals with the Complainant’s health/mental state at the relevant time is a letter of 29 March 2022 from a Principal Psychologist which asserts that the Complainant was suffering from moderate to severe psychological distress, in which the Complainant agreed that he was coping well.

A medical certificate from March 2023 and letter of 29 April 2024 post-date the complaint form and do not in any way offer an explanation or excuse for the failure to submit a complaint form prior to 26 August 2022. The Complainant has not established the facts and causation required to show that his alleged illness intervened to prevent his complaint being made in time. This is particularly so, given the other steps taken by him during this time as set out in this submission.

Food / Transport / Accommodation

It is denied that the Complainant was dependent upon the Respondent for food, transportation and/or accommodation. He was allowed to avail of free food, which was to his benefit. The representation of the provision of free food from the restaurant as a method of control, is a gross misrepresentation. Similarly, the arrangement of accommodation for the Complainant when he first arrived was to facilitate and assist him. He was encouraged to seek his own accommodation and did so from October 2021, moving to Kilkenny in January 2022.  He had access to public transport.

Awareness of employment rights/ access to legal advice

It is well established in case law that ignorance of the law does not provide a justifiable excuse for a failure to bring a claim in time. Without prejudice to the foregoing, it is apparent that the Complainant was aware of his rights under Irish law and where he could obtain further information in this regard. The assertion that the Complainant did not have the benefit of legal advice prior to submitting his WRC Complaint Form is entirely disingenuous.

It is clear from his Employment Permit documents, that the Complainant was provided with a Summary of Employment Rights in Ireland when he received his work permit and was advised that further information was available from the website of the WRC. It is also clear from his evidence to the WRC that he was aware of his labour rights and that the Respondent was visited by WRC Inspectors.

The Complainant reported alleged breaches of his employment rights to An Garda Síochána in February 2022 (which are denied).  He further attended with the Legal Aid Board in March/April 2022, so he had access to legal advice from that stage, well within the six-month reckonable period. It is abundantly clear that alleged breaches of employment rights were discussed.

In Dr Frank Whelton t/a Whelton Dental and Elaine Corkery, the Labour Court held that illness without evidence to show that it rendered the Complainant incapable of submitting his complaint form and/or ignorance of the law, cannot excuse the lodging of complaints outside of the statutory time limits that apply.

In Salesforce.com v Leech, the Court held 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. An applicant must establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. 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.

Ultimately, the Complainant lodged the WRC Complaint form himself in February 2023, which he clearly could have done earlier.  The Complainant has failed to show that he would have presented his complaint in time were it not for the intervention of the factors he relies upon as constituting reasonable cause. This is evidenced from his ability, despite his level of English, to engage with state agencies and apply for jobs, to use translation facilities, his access to translators, his attendance with the legal aid board and the lack of any medical evidence that indicates he was incapable of presenting his application in time.

Further and without prejudice to the foregoing, the length of delay was significant and should be taken into account. The Complainant contacted the Migrant Rights Centre on or before 8 September 2022. At that stage the Complaint form could have been submitted and an application to extend time made based on a very short delay. However, the Complaint Form was not submitted for almost a further five months after that.

It is submitted that there are no grounds that constitute reasonable cause to extend the time in respect of the Complainant’s claims and the Labour Court is asked to reject the application.

Relevant Law - Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows:

“(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.”

Deliberation and Findings

The preliminary matter for determination by the Court is an application for an extension of time.

The Complainant lodged a complaint under the Act to the Workplace Relations Commission (WRC) on 3 February 2023. Therefore, the relevant period for consideration by the Court in assessing a contravention under the Act, having regard to the six-month statutory time frame set down at Section 41(6) of the Workplace Relations Act, 2015, is the period from 4 August 2022 to 3 February 2023.

Should the Court find a reasonable cause for the delay in lodging the claim, the timeframe for considering when a contravention occurred can be extended from six months to twelve months. The Complainant in this case seeks an extension of the timeframe for lodging a complaint to encompass the period, from 4 February 2022 to 28 February 2022, before he left the Respondent’s employment. The application for extending time is made on the basis that his failure to present a complaint within time was due to reasonable cause.

The established test for deciding if an extension of time can be granted for reasonable cause is that formulated by this Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.  The test was set out 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 test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The burden of proof in establishing the existence of reasonable cause rests with the Complainant. To discharge that burden, and for this Court to grant an extension of time, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time. Finally, the Court must satisfy itself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

What happened to prevent the complaint being lodged within time?

Counsel for the Complainant submits that there was both a valid reason and a justifiable excuse for the delay in lodging the claim in circumstances where the Complainant was (i) a vulnerable person with very limited English, (ii) identified as a victim of human trafficking, (iii) suffering from moderate to severe psychological distress, (iv) not aware of his employment rights or how to pursue statutory employment claims and (v) dependent on the Respondent for work, food, transportation and accommodation.

Counsel for the Respondent disputes that the Complainant was a vulnerable person subject to human trafficking. Counsel submits that no conclusion was ever made by An Garda Síochána about the allegation of human trafficking, and that the Respondent was issued with subsequent work permits for other workers. She submits that there is no evidence before the Court that the Complainant was a vulnerable person or suffered mental health issues that prevent him lodging a complaint to the WRC. The Complainant was present during an inspection by a Workplace Relations Commission when he could have raised issues, and subsequently was capable of engaging with various external agencies.

An amount of correspondence was opened to the Court. No witness testimony was proffered by either side. While the Court accepts that the Complainant was engaged with An Garda Síochána, the HSE, and the Legal Aid Board during the relevant period in relation to the allegation of human trafficking and other health and social issues, it finds that no adequate explanation was provided to explain what prevented him from lodging a complaint to the WRC during this time.

It is submitted that the Complainant’s psychological distress prevented him from lodging his complaints any earlier than he did. He was assessed by a HSE Principal Psychologist on 8 March 2022 and found to be suffering from moderate to severe psychological distress. However, no evidence other than hearsay was presented to the Court to say that mental health issues prevented the Complainant from lodging complaint in time after that assessment in March 2022. The Court further notes that the Complainant was capable of seeking employment online around this period.

It is submitted that the Complainant’s delay in seeking advice about his employment rights was justified by the fact that he was dealing with the investigation of possible criminal activity as well as his continued residency in Ireland and pressing health and social issues.  No adequate explanation was provided to explain what prevented the Complainant lodging a complaint within the initial six-month timeline, when he could engage with other agencies during this time.

In that regard, it is accepted that the Complainant had a low level of English. However, it is also accepted that he used freely available online translation services to contact the Department of Justice by email on 23 December 2021 and was able to engage with other agencies in and around this time.

It is submitted that the Complainant was not aware of his employment rights or how to pursue potential breaches of such rights. While ignorance on the part of the Complainant about the appeal process may explain a delay in submitting an appeal under the Act, this Court has regularly found that ignorance of the law cannot excuse the lodging of complaints outside the statutory time limits that apply.

Furthermore, it seems to the Court that the Complainant had some awareness of the WRC and a six-month timeline to lodge complaints when he engaged with the Legal Aid Board and Migrants Rights Centre Ireland in September 2022, as evidenced by an email dated 6 September 2022 from the Complainant to the Legal Aid Board where he wrote as follows:

“Hello miss barbara my name is huseyin turkay How are you, if you are available, I would like to ask a question, how can I get information about my case at WRC, I wonder because it’s been 6 months since I applied”

On 8 September 2022 he received a reply from the Legal Aid Board which advised as follows:

“Dear Husseyin,I have received an e-mail from the Garda concerned with your case. I understood that your query was in relation to their investigation. The Garda would not be filing your case with the WRC. That would have to be filed by you. Legal Aid is not available for representation at the WRC. I can suggest that you make contact with the Migrants Rights Centre Ireland and they have expertise in this area. Their phone number is (xxx). They operate during the following hours (xxxx). Their website is (XXX).

It is clear from the above correspondence that the Complainant contacted the Legal Aid Board to seek advice about lodging a complaint to the WRC and was advised that he would have to file such a complaint, as it was not within the remit of An Garda Síochána or the Legal Aid Board to do so. The following day on 9 September 2022 the Complainant received an email from the Migrant Rights Centre Ireland which stated as follows:

“Thank you for contacting MRCI seeking assistance in relation to employment issues. Yes, we can assist you making a complaint to the Workplace Relations Commission. Just a quick question in relation to the 6 months time limit: when did your employment stop? If you have time, You can come and meet me at out office on Tuesday 20/09/22 at 14:00 hours (2pm)”.

When the Complainant sought the assistance of the MRCI in September 2022, the 6-month statutory period for assessing any alleged contraventions occurring in February 2022 had already passed. No adequate explanation was provided to explain why the Complainant (or the MRCI acting on his behalf) did not lodge a complaint without delay at that point given that the correspondence dated 9 September 2022 indicates an awareness of the 6 months’ time limit for lodging complaints.

Counsel for the Complainant further submits that he did not receive legal advice in relation to his employment rights until after he had submitted the complaint form in February 2023 and contends that the MRCI is not a practising law centre and therefore does not provide legal advice. The Court cannot accept that assertion on the facts of this case.

It is clear from the correspondence from the MRCI that it was acting on behalf of the Complainant in relation to employment rights matters. In a letter to the Respondent dated 7 December 2022, it stated as follows:

“MRCI is a national organisation working to advance the rights of migrant workers and their families at the risk of exploitation, social exclusion and discrimination.

The person aforementioned present to us and instructed us to assist him in vindicating his employment rights.  He has given us the authority to act on his behalf (please consider the attached).

Pursuant to Section 23 of the National minimum Wage Act 2000, we wish to request a written statement of the average hourly pay during his employment with you. You have 4 weeks to respond to this request.  Please post the response to Migrant Rights Centre address mentioned above.”

The Court does not accept the fact that the MRCI is not a practising law centre prevented a complaint under the Act being lodged. The MRCI is a body engaged in providing advice and representing workers in matters relating to their employment. It is well established in case law however that the failure by a representative to submit complaints within the statutory timeframes does not constitute reasonable cause for the purposes of providing for an extension of time.

Finally, the Court was urged to consider Directive 2011/36/EU of 5 April 2011 and the GRETA, Evaluation Report Ireland, Third Evaluation Round, Access to Justice and Effective Remedies for Victims of Trafficking in Human Beings, 2022, which highlights that victims or suspected victims of human trafficking have the right of access to justice and effective remedies for any harm committed against them. The Labour Court is a creature of statute, and its powers and duties are derived solely from statute. Nothing in the Directives allows for an extension of time beyond that provided for at Section 41(6) and 41 (8) of the Workplace Relations Act, 2015.

In this case the Complaint was lodged to the WRC over 11 months after the alleged contraventions under the Act. Where there is a long delay in lodging a complaint, the Complainant is under a greater onus to prove reasonable cause. As set out in Cementation Skanksa a short delay may require only a slight explanation whereas a long delay may require more cogent reasons to explain why the Complainant was prevented from lodging a complaint within the six-month time limit set out in the Act. In the Court’s judgment no valid explanation to properly account for the delay has been furnished that offers an excuse or explains the delay in lodging a complaint form to the WRC in February 2023. 

In all the circumstances, the Court finds that the Complainant does not meet the threshold outlined in Cementation Skanksa whereby the statutory timeframe within which he is permitted to refer his complaint under the Act can be enlarged for reasonable cause.

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 in this case may explain the delay, the Court finds that they do not provide afford a justifiable excuse for the delay.

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. The Court cannot assume a jurisdiction which is not conferred to it. A failure on the part of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim. As a result, the Court finds that it has no jurisdiction to hear the complaint.

Determination

The Court finds that the reasons provided by the Complainant are not sufficient to demonstrate reasonable cause for the delay in filing his complaint with the WRC.

Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission and is accordingly statute barred. 

In these circumstances, the Court cannot proceed to hear the substantive matter.

The appeal is rejected, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
ÁM	______________________
13 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.