Complainant

Respondent

Parties

Monika  Uzpalyte

TK Electrical & Mechanical Services Limited t/a Bathworks

Representatives

  Self-represented

 Self-represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00058057-001

02/08/2023

The complainant was employed with the respondent from 17 May 2022 until her resignation on 5 April 2023.

The complaint relates to non-payment of a bonus payment in respect of July 2022, September 2022 and November 2022 sales in accordance with the complainant’s contract of employment.

The respondent submitted that the complaint was statute-barred, and further disputed the complaint on the basis that the complainant’s interpretation of the relevant provision in the contract was incorrect. 

The complainant entered a contract of employment with the respondent which provided for a bonus payment on the respondent reaching certain levels of sales excluding VAT in a month.

In June 2022, the respondent reached a figure in sales excluding VAT that entitled the complainant to a €400.00 bonus payment, which the complainant received.  In July 2022, the respondent reached a figure in sales excluding VAT that entitled the complainant to a €400.00 bonus payment, which was not paid to the complainant.  The respondent told the complainant the target had not been reached. The complainant was entitled to a bonus payment of €1,000.00 based on sales excluding VAT in September 2022, but she received a bonus payment of €400.00.  The complainant was entitled to a bonus payment of €1,000.00 based on sales excluding VAT in November 2022, but she did not receive any bonus payment. 

When the complainant received the 2022 sales figures at the beginning of 2023, she questioned why she had not received the bonus payments due to her and was told she would be given the money when the figures were better.

The complainant resigned in April 2023 and requested the unpaid bonus payments.  The complainant was told they would not be paid as she had been given a gift card at Christmas.  The amount gifted did not equate to the outstanding bonus payments.

In relation to the statutory timeframe for presentation of her complaint, the complainant had submitted her case to the Commission at the end of April 2023 and did not hear anything further.  The complainant did not receive correspondence dated 2 May 2023 from Inspection Services informing the complainant that the complaint did not come within its remit. The complainant discovered at the end of July 2023 that her case with the Commission had been closed and it was on further follow-up that the complainant received on 2 August 2023 copy of the May communication that had issued from Inspection Services.

The respondent submitted that the complaint had been presented outside of the statutory timeframe and was statute-barred.

The complainant’s contract with the respondent provided for a bonus structure based on a collective or total target, as opposed to individual sales targets.  The figures relied on by the complainant to ground her complaint are invoiced-out figures, not sales figures.  The invoiced-out figures include invoices for products despatched from sales orders placed prior to the complainant commencing employment with the respondent.

The respondent addressed the figures submitted by the complainant in respect of each of the months July, September and November 2022, the subject of the complaint, and submitted that they included invoices relating to sales orders that pre-dated the complainant’s employment and, when proper account was taken of such invoices, the complainant was either not entitled to a bonus or received the bonus to which she was entitled.

The respondent further submitted that November 2022 was not included in the bonus structure based on the contract of employment which provided for the structure to apply to the first 6 months of employment.

There are time limits applicable to the presentation of complaints under the Payment of Wages Act 1991 (the “1991 Act”). 

The relevant provisions are in section 41 of the Workplace Relations Act 2015 (the “2015 Act”) which 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.

(7) …

(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.”

On the evidence before me, the complainant was paid weekly, and bonus payments were payable in the first pay week after the month on which they were based.  The contraventions complained of were in respect of unpaid bonus payments in August 2022, October 2022 and December 2022 based on July 2022, September 2022 and November 2022 sales figures respectively. 

On 28 April 2023, the complainant submitted a complaint of a contravention of the 1991 Act to Workplace Relations Commission Inspection Services using the Workplace Relations Commission complaint form.  The functions of inspection and adjudication are separate and distinct, and the complainant’s referral of a complaint to Inspection Services does not constitute a complaint presented for adjudication in accordance with section 41 of the 2015 Act. 

The complaint presented for adjudication under section 41 of the 2015 Act was presented on 2 August 2023.  In accordance with section 41(6) of the 2015 Act, as set out above, the period that may be investigated is 3 February 2023 to 2 August 2023 unless an extension of time is granted.

Therefore, the complaint of non-payment of a bonus in August 2022, October 2022 and December 2022 has clearly been presented for adjudication outside the six-month period set out in section 41(6) of the 2015 Act. 

I may extend the six-month period up to 12 months if satisfied that the failure to present the complaint within time was due to reasonable cause.  

The established test for reasonable cause for the purpose of granting an extension of time is that formulated by the Labour Court in Cementation Skanska v Carroll DWT0338 where the 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 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.”

It is clear that the onus is on the complainant to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the delay. 

The complainant’s reasons for the delay in presenting her complaint for adjudication are a lack of communication and assistance from the Commission in relation to the complaint she submitted in April 2023, including the non-receipt of a communication from the Commission dated 2 May 2023.

As I understand the complainant’s submission in relation to explaining and excusing the delay, it is that she did not receive a communication from Inspection Services dated 2 May 2023 informing her of its position that her complaint was outside its remit.  The complainant’s evidence was that when she followed up on her complaint with the Commission at the end of June 2023, she was told her case was still being looked at and that it was not until the end of July that she was told her case was closed.  The complainant was emailed by Inspection Services on 2 August 2023 a copy of the letter dated 2 May 2023 which informed of Inspection Services’ position on her complaint.

I am not satisfied the failure to present the complaint for adjudication within time was due to reasonable cause for the following reasons.  The Commission’s website provides information to persons on how to make a complaint along with the resolution options and services available for dealing with complaints, which includes information on inspection and adjudication services.  The complainant selected investigation by Inspection Services, as opposed to adjudication, on the complaint from she submitted in April 2023 as the preferred resolution option in relation to her complaint of a contravention of section 5 of the 1991 Act.  The Commission is independent and impartial between parties and does not advise a complainant on which of the functions of inspection or adjudication is most appropriate to their case or propose an appropriate redress type.  It does however provide comprehensive information on its website for those contemplating making a complaint and on the Commission’s services.  The online complaint form is an interactive document, and it too contains information for persons completing the form, including on the different redress options.   There is also an information line operated by the Commission for service users or prospective service users.  A letter dated 2 May 2023 informed the complainant that her complaint could not be considered further by Inspection Services.  The complainant’s evidence was that she did not receive this letter.  I note that the letter was addressed to the complainant at the address provided on her complaint form.  The complainant’s evidence was that she was told her complaint was still being looked at when she contacted the Commission at the end of June 2023; I consider such information would be unusual having regard to the fact that a letter dated 2 May 2023 had issued from Inspection Services. 

It is my view that the complainant was in possession of the relevant facts and had access to information to submit her complaint for adjudication within the required six-month period.  It is further my view that receipt or non-receipt of information on the complaint from Inspection Services is not reasonable cause for not presenting a complaint for adjudication within time given the different functions and resolution options of inspection and adjudication, and the independent and impartial role of the Commission in this regard.

Accordingly, I find that this complaint was presented outside of the time limit set out in section 41(6) of the 2015 Act and I am not satisfied that the failure to present the complaint within time was due to reasonable cause.

In such circumstances, I find that I do not have jurisdiction to entertain this complaint.

I find that this complaint was presented outside of the time limit set out in section 41(6) of the Workplace Relation Act 2015 and I am not satisfied the failure to present the complaint within time was due to reasonable cause.

As I do not have jurisdiction to entertain the complaint, my decision is that the complaint is not well founded.

Payment of Wages Act 1991 – Time limits – Reasonable Cause – Presentation of a complaint for adjudication - Resolution options of investigation and adjudication – Workplace Relations Commission services