PWD2464

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00048447 (CA-00059550-001)

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 Mr Amir Sajad Esmaeily (the Complainant) against Decision ADJ-00048447 CA-000059550-001 of an Adjudication Officer under the Payment of Wages Act, 1991 (the Act) against his employer Accountancy & Business College (Ireland) limited t/a Dublin Business School (the Respondent).  The Adjudication Officer held that the complaint was not well founded and was out of time. 

Background

The Complainant commenced employment with the Respondent as a lecturer on the 21st September 2018. The employment ceased on the 3rd February 2023 and final payment was made on the 24th February 2023.  The Complainant states that he is due overtime amounting to €24,402.22. The Respondent denies that any monies are due.

Preliminary issues

 The Respondent raised as an issue the fact that the Complainants complaint was out of time.  The Complainant’s employment came to an end on 3rd February 2023. The Complainant did not lodge his complaint with the WRC until 23rd October 2023 which was outside the six months provided for under the Act.  Even if the date of the final payment was taken as the date of cessation his complaint is still out of time.

The Complainant submitted that he wished to make an application for an extension of time. He stated that on the 25th January 2023 he came back from a trip and that he had two family bereavements. He was shocked to be suspended on the 25th January 2023 and dismissed on the 2nd February 2023. It was a lot to deal with. The Complainant stated that he contacted his solicitor and sent them all the relevant documents in March 2023. He also made a data request and was waiting for data from the Respondent. The Complainant submitted that it was a combination of these events that contributed to his complaint being lodged late.

The Respondent submitted that the Complainant had not established reasonable cause. During the same period, he had lodged an unfair dismissals complaint in time. They opened to the Court a letter from the Complainant’s solicitor to the WRC date 26th October 2023 which states “Having filed the complaint for unfair dismissal, we later sought information pertaining to the potential payment of wages claim, only recently receiving the requisite documents to calculate the value of such a claim and verify same with supporting materials, due to our clients ill health.”

This suggests that contrary to what the Complainant stated his legal representatives did not have all the relevant documents in March 2023. No medical evidence has been produced to show that the Complainant was incapacitated to such a degree that he could not give instruction to his legal representative or make a complaint during the relevant period.  It has also clearly been established in caselaw that waiting for documents is not a sufficient reason to delay submitting a complaint.

Conclusion of the Court on the Preliminary Matter

TheCourt in the case of CementationSkanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338 established the test for deciding if an extension should be granted for reasonable cause. 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.

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 Complainant submitted that he delayed submitting his complaint because he suffered two bereavements in January 2023, he instructed his solicitor who did not submit the complaint, he was unwell during the period, and he was waiting for the outcome of a data request. The Complainant did not articulate how any of these issues led to the delay in making his complaint.

Taking that the Complainant’s employment ended on the 3rd February 2023 he had until 2nd August 2023 to lodge his complaint. The bereavements the Complainant is seeking to rely on occurred in January 2023 and it was not explained how they contributed to the delay. No medical certificates were provided to show that he was incapacitated during the period to the extent he could not submit his complaint. He confirmed to the Court that he had submitted an unfair dismissal complaint during the period.  He did not accept his legal representative’s position as articulated in letter of 26th October 2023 that he had only recently provided them with the relevant information for this complaint.

The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Court is satisfied that, if there was a contravention of the Act, that date was no later than the 24th February 2023 when he received his final payment from the Respondent. The Complainant’s claim was not presented to the Workplace Relations Commission until 23rd October 2023 and was therefore outside of the statutory time limit.   The Court notes that the reasons proffered by the Complainant do not either explain the delay, and or afford an excuse for the delay. Therefore, his appeal must fail.

Determination

For all the reasons set out above, the Court finds that the complaint under the Act is statute-barred and therefore must fail.  The Court cannot proceed to hear the substantive matter.

Accordingly, the Complainant’s appeal is not allowed, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
ÁM	______________________
22nd November 2024	Deputy Chairman

NOTE

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