Complainant

Respondent

Parties

Shri Charan  Kandhasamy Saravanakumar

Altada Technology Solutions Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

No Appearance – In Receivership

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-00056207-001

20/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act 1991

CA-00056228-001

21/04/2023

The Complainant referred his complaints to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 20th April 2023 and the 21st April 2023 wherein he claimed that he was owed pay for days worked by him and holiday pay not paid to him at the date of termination of his employment. 

The Complainant commenced employment with the Respondent on the 23rd May 2022 and his employment ended on the 16th September 2022. He was employed as an Associate Data Engineer. He gave evidence that in July 2022 his wages were reduced by 22.5% without his consent. On the 30th July 2022 there was a deduction from the Complainant’s wages of €2,069.35 which was not agreed. The Complainant also claimed to be owed holidays of 4.47 days of €427.40.

The Respondent did not attend the scheduled hearing of these complaints.  Notice of the hearing arrangements was sent to the Respondent on the 8th November 2024. By email dated the 26th November 2024 the Receiver confirmed that there would be no appearance by or on behalf of the Respondent at the scheduled hearing.

In making these findings, I have considered the documentation submitted by the parties and the oral submissions adduced at the hearing summarised above.

Preliminary Issue – Time Limit

The WRC Complaint Forms were received by the WRC on the 20th April 2023 and the 21st April 2023 and the complaints relate to a period from July to September 2022. Therefore, it is first necessary to consider the time limits for referring a complaint to the WRC and decide on whether the Complainant meets the test for an extension of time.

The time limits for referring complaints to the WRC are set out in Sections 41(6) and 41(8) of the Workplace Relations Act 2015 (hereinafter referred to as “the 2015 Act”):

“(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.

In Cementation Skanska (formerly Kvaerner Cementation Limited) v. Carroll DWT 38/2003 the Labour 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 his or her 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.

In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The test draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J. 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.”

In Salesforce.com v. Leech EDA1615, the Labour Court – having referred to the Determination in Cementation Skanska – stated:

“It is 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 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.”

At the hearing I asked the Complainant to address me in relation to the issue of reasonable cause and my discretion to extend the timeframe, in line with the provisions of the legislation. He said that he was from India and that this was his first full time job in Ireland and that he had never been through this process before. He outlined the lack of communication from the Respondent company and highlighted the appointment of the Receiver and that he engaged with them. He said that he was guided by the Receiver and that as soon as he was informed that he needed to pursue a complaint regarding his outstanding wages with the WRC he referred his complaints immediately. 

In arriving at my decision I am guided by the fact that the Labour Court has given consideration to the meaning to be ascribed to “reasonable cause” in employment Statutes as the basis for extending time to initiate complaints under those enactments. The Labour Court has further emphasised that where reasonable cause is shown a decision maker must still consider if it is appropriate in the circumstances to exercise their discretion in favour of granting an extension of time. It should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case.

Taking into consideration the evidence of the Complainant and in line with the case law referred to above I find that in the totality of the circumstances of the instant case the Complainant has met the threshold required in order for me to exercise my discretion and extend the relevant timeframe on the basis that “reasonable cause” exists within the meaning of the 2015 Act. Having regard to the other factors identified as relevant for consideration by the Labour Court, I also find that there is no prejudice to the Respondent and that the Complainant has a good arguable case. In arriving at the decision, the absence of any objection on the part of the Respondent has also been taking into account.

CA-00056207-001

The Relevant Law

The Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) provides the following definition of “wages” at section 1:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

The above definition includes pay and holiday pay.

Sections 5(1) and 5(6) of the 1991 Act provides:

5(1) 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.

(2) …

(3) …

(4) …

(5) …

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

It is apparent from the foregoing sections that where wages are properly payable the failure of an employer to pay such wages is an unlawful deduction.

I found the Complainant to be a credible witness. He gave evidence that he commenced employment with the Respondent on the 23rd May 2022 and that in July 2022 he was subjected to a unilateral pay cut of 22.5%. On the 30th July 2022 there was a deduction from his wages of €2,069.35 which was not agreed. At the end of July 2022 the Complainant, along with a number of other employees, was placed on temporary lay-off. There was no communication from the Respondent which left the Complainant concerned because he had outgoings he could not meet. He obtained a new job and he resigned from his employment with the Respondent. His employment with the Respondent ended on the 16th September 2022. At the date of the termination of his employment he was owed holidays of 4.47 days of €427.40.

Having regard to his uncontested evidence I find that the sum of €2,069.35 gross in respect of pay and €427.40 in respect of holiday pay, was properly payable to the Complainant and was unlawfully deducted from his wages. I therefore find that the complaint is well founded.

CA-00056228-001

This Complaint is a partial duplicate of CA-00056207-001 and was withdrawn at the hearing.

CA-00056207-001

I decide that this complaint is well founded and I direct the Respondent to pay to the Complainant compensation of €2,069.35 gross in respect of his pay and €427.40 gross in respect of holiday pay not paid to him at the date of termination, being a total of €2,496.75 gross less any lawful deductions.

CA-00056228-001

This Complaint is a partial duplicate of CA-00056207-001 and was withdrawn at the hearing.