Complainant

Respondent

Parties

Aoife  Hartigan

 Irish Pizza Ventures, T/A  Dublin Pizza Company

Representatives

 Self-represented 

 Respondent owner.

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-00061001-001

15/01/2024

The complainant has presented a complaint of an unlawful deduction of €2625 from her wages con. The date of the deduction was the 31/3/2023.

The complainant was employed with the respondent as a head chef from 26/1/2022- 26/2/2023 when her employment ended.

She earned €750 gross a week, €619 net. She worked a 45-hour week.

She submitted her complaint to the WRC on 15/1/2024.

The parties agreed to change the title of the employer to reflect its correct legal title. This is reflected in the decision.

Time limits

The respondent submits that the complainant has not complied with the statutory time limits for submission of a complaint.

Time limits.

The complainant was unaware of the time limits.

She had been out on sick leave during just prior to the monies being deducted from her salary.

She was then made redundant on 26/2/2023 and this delayed her in submitting a complaint.

This explains the delay.

I am obliged to determine if I have jurisdiction to hear this complaint.

The matter of being obliged to determine a preliminary issue such as statutory time limits in advance of addressing the substantive complaint has been dealt with in several cases.

 In Mary Sheehy v. Most Reverend James Moriarty [UD1264/2008] the Tribunal held as follows:

‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the claims were not instituted within the time periods set out in the legislation”.

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA101], the Labour Court issued a preliminary decision.  The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J in B.T.F. v. Director of Public Prosecutions 2 ILRM 367.   In the latter case Hardiman J held as follows

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear".

The same conclusions were reached in Donal Gillespie v. Donegal Meat Processers [UD/20/135 and in Bus Eireann v. SIPTU[PTD8/2004].

The authorities point to the requirement for me to determine the jurisdictional issue in the first instance.

Date of the Contravention.

The complainant’s complaint form did not date the deductions, but in an email to the WRC and her evidence at the hearing put the sole deduction at 31/3/2023

The complainant submitted her complaint to the on 15/1/2024.

Relevant Law.

The cognisable period for the purposes of this complaint is 16/6/2023- 15/1/2024 as per section 41 (6) of the Workplace Relations Act, 2015. It 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”

Section 41 (8) states:

“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 terms of section 41(8) availing the complainant, the matter of extending time where reasonable cause exists has been addressed in many decisions. In Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 the test was set out in the following terms: -

“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.”

Findings and conclusions on the admissibility of the contravention occurring on the 31/3/2023.

The illness and redundancy occurred in February – March 2023 and had well elapsed by the time the statutory time limit of the 16/6/2023 had been reached.

Lack of Knowledge

In Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that lack of knowledge in this regard does not prevent the statutory limitation period from starting to run. She held that

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

I find that the complainant does not meet the threshold outlined in Cementation Skanksa whereby the statutory timeframe within which she is obliged to refer this complaint under the Act can be expanded for reasonable cause.

Based on the evidence and precedent, I cannot find that I have jurisdiction to hear this contravention of 31/3/2023.

I must find this complaint, as initiated, to be time- barred.

I decide that I do not have jurisdiction to hear this complaint.

Time- barred.