ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050420

Parties:

Complaint:

Date of Adjudication Hearing:  19/04/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 13th February 2024 under Section 41 of the Workplace Relations Act 2015.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  The Complainant submitted supporting documentation.  I heard this complaint by remote hearing on 19th April 2024 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020.  A HR Manager appeared on behalf of the Respondent and the Complainant was self-represented and supported by a former colleague.  At the outset, the legal requirements for this complaint and changes to procedure under the Workplace Relations (Miscellaneous Provisions) Act 2021 were outlined.  This hearing was held in public. 

In written submissions, the Respondent raised two preliminary objections to jurisdiction, namely (1) that this complaint had been brought under a non-applicable statutory provision and (2) that this complaint was out of time.  I directed that the preliminary issues would be heard first.  If finding for the Respondent on either or both issues, that would dispose of the complaint and a decision would issue accordingly.  If finding in favour of the Complainant, a substantive hearing would be scheduled with reasons reserved to the decision.  A post-hearing email from the Complainant containing commentary on the Respondent’s presentation at the hearing was received on 27th May 2024.  All the evidence, documentation and submissions proffered by both Parties has been fully considered. 

Preliminary Issues:

Summary of Complainant’s Case:

The Complainant had been employed by the Respondent in various roles until he retired on 24th August 2016.  As set out in his complaint form, he along with a number of other retired colleagues claimed that he was entitled to payment in lieu of additional annual leave / privilege days provided for under a Circular dated 13th April 2011 which was furnished.  It was confirmed that this complaint was limited to the Complainant and his particular circumstances.  He contended that he had been unaware of the Circular until he had recently learned that other existing employees had received backdated annual leave / privilege days and a colleague who had been due to retire had received payment in lieu of same.  Since November 2023, the Complainant had sent numerous emails to the Respondent seeking clarification of his entitlement and payment in lieu but had not received a definitive reply to date.  The Complainant was unable to (1) confirm that he would have been entitled to the annual leave / privilege days as a matter of contract; (2) confirm precisely the number of days to which he would have been entitled within any particular reference period or (3) what sum he claimed to be due and owing in lieu of the additional annual leave / privilege days not granted.

In relation to referral under the incorrect statute, the Complainant confirmed that he had intended to refer this complaint under the applicable statute.  In relation to the requisite time limit, he had only become aware that he might be entitled to this payment on foot of telephone conversations with other colleagues in or around November 2023.  He contended that management had unfairly withheld payment and time began to run from the date of his knowledge of entitlement to same.

Summary of Respondent’s Case:

The HR Manager confirmed that the Respondent is a national service located in Oberstown, Lusk, County Dublin that provides a safe and secure environment for young people remanded in custody or sentenced by the Courts for a period of detention.  It falls under the aegis of the Children Detention Schools Unit in the Department of Children, Equality, Disability, Integration and Youth (DCEDIY).  The principle objective of the Respondent under the Children Act 2001 is to provide appropriate care, education, training and other programmes to young people between 12 and 18 years with a view to successfully reintegrating them back into their communities and society.  It was confirmed that the Complainant retired from his position with the Respondent on 24th August 2016.

The Respondent contended that the WRC did not have jurisdiction to hear this complaint as (1) this complaint had been brought under a non-applicable statutory provision and (2) this complaint was out of time.  In respect of the first objection, reliance was placed upon ADJ-0003795 to contend that an Adjudication Officer of the WRC is strictly confined to deciding a complaint under the statutory provision which it is referred.  Accordingly, as Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006 has no application to the Respondent, there is no jurisdiction to investigate this complaint.  In relation to the second objection, it was submitted that as the Complainant had retired on 24th August 2016, this complaint had been referred outside of the statutory 6-month time limit and given that an extension of time may only be granted up to 12 months, it is absolutely statute-barred.

Findings and Conclusions:

Complaint referred under a Non-applicable Statutory Provision

The Respondent submits that as this complaint has been referred under the incorrect statute, the WRC does not have jurisdiction to investigate same and/or amend to a more applicable statutory provision.  There is no issue that Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006 is confined to mobile staff working in civil aviation and has no application to the Complainant’s former workplace.  The question is whether it should be substituted with a more applicable statute to his complaint. 

It is apposite to provide a more fulsome outline of the relevant case law, particularly where the Respondent has sought to selectively rely upon one authority, being ADJ-0003795 and the Complainant is self-represented.  The Adjudication Officer is also cognisant of conflicting decisions of the WRC and the Labour Court on this issue.  The Parties were referred to the following caselaw during the hearing and invited to comment.  The Respondent maintained that there was no latitude to substitute the statutory provision under which a complaint was referred in any circumstances.

In Galway-Mayo Institute of Technology -v- Employment Appeals Tribunal and Others [2007] IEHC 210, Charleton J. of the High Court quashed an EAT decision upholding a complaint under a statutory provision that neither party had sought nor had notice of.  In so doing, he set out the approach to be adopted where a statutory remedy is sought either in writing or orally during a hearing: “It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice.  For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it.  If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed.  In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it.  If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

In the High Court Judgement in County Louth VEC -v- Equality Tribunal & Brannigan (2009) IEHC 370, Mr Justice McGovern held: “I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint.  If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”  Albeit held to be obiter by Supreme Court, these comments are widely regarded as settled law.

In ADJ-00006196, the Adjudication Officer applied the aforesaid principles to amend the statute under which a complaint had been referred to reflect the complaint being made on the following basis: “Applying this approach to the instant case, I note that the complaint form was unequivocal about the nature of the claim.  The complainant was explicit that she sought recovery of notice pay arising from a set of circumstances where she had been made redundant.  I note that the WRC complaint form is a non-statutory form.  I also note that this complaint was referred to me under Section 41 of the Workplace Relations Act (along with other statutes), giving me legal jurisdiction to make an award pursuant to the Schedule 5 of the Act, including under the Minimum Notice and Terms of Employment Act.  Moreover, I note that Section 41(5) of the Workplace Relations Act imposes a duty on the Adjudication Officer to make a decision in relation to the claim or dispute in accordance with the relevant redress provision.  The complainant gave uncontroverted evidence that the respondent and its accountant had advised her of her entitlement to notice pay.  Given the circumstances, I took the additional step of writing to the parties to inform them that I proposed to address the claim under the Minimum Notice and Terms of Employment Act.  I offered the parties the opportunity to make representations within two weeks of the date of the letter.  This correspondence issued on the 13th April 2017.  The complainant made representations, confirming their interaction with the respondent.  The respondent did not avail of the opportunity to make representations.”  The same principles are routinely applied by Adjudication Officers to substitute or add referral statutory provisions including ADJ-00032530 and ADJ-00033234 (accepted on appeal to the Labour Court). 

It is clear from the aforesaid caselaw of the superior courts that there is no bar to substituting or adding a statutory provision under which a complaint is referred to the WRC, even if this changes the redress provisions.  Conversely, the administration of justice may require such substitution or addition, so long as the general nature of the complaint remains the same.  Invariably, circumstances will arise whereby consideration of such substitution/addition is required e.g. where the complaint form has not caught up with a new statutory cause of action, the pre-formatted description leads the complainant to tick the box for the wrong statute or for a non-exhaustive list of other reasons, a complainant has not ticked the correct box but has indicated the general nature of the complaint.  As the WRC form is non-statutory, the general nature of the complaint may also be set out via any representations to the WRC within the requisite time limit subject to any extension of time.  Such a substitution/addition also requires that it is under a statute in which the WRC has jurisdiction and the respondent has been afforded sufficient notice to meet same such that no prejudice is caused. 

It is further noted that the current processing system only generates complaints and reference numbers as per the tick boxes (whether online or manual) and the actual complaint/s are those contained within the body of the complaint form i.e. under ‘Complaint Specific Details or Statement’.  The Director General delegates seisin of the complaint/s to the Adjudication Officer to investigate and issue a written decision in accordance with the requisite redress provisions.  Delegated powers include assigning reference numbers to complaints within the complaint form e.g. where there are multiple complaints under the Employment Equality Acts.  Also imposed is a duty to inquire into the complaint/s including confirmation of the nature and scope of the complaint/s before the WRC.

In the instant case, the ‘Complaint Specific Details or Statement’ section contained the following wording: “We the undersigned are formally lodging a complaint about the treatment we are receiving from the management of Oberstown Campus.  According to the enclosed Circular letter of 13/4/2011 from XY, Principal Pay and Remuneration on behalf of the Minister of Public Expenditure and Reform, we are entitled to a certain number of additional annual leave / privilege days.  The present staff were given their backdated privilege / annual leave allocations months ago.  One employee who was about to retire received payment for his backdated annual leave entitlement.  If he received payment for his entitled days, the precedent has been set and all retirees are entitled to a similar payment.  Since November we have been sending numerous emails asking about these hours but management have refused to give us a definitive answer as to when these hours would be paid.”  The complaint form also refers to another post-retirement dispute involving the Parties regarding entitlement to pension and additional payments which were ultimately resolved and backdated.

From the complaint form alone, I am satisfied that that the Complainant is seeking payment in lieu of annual leave / privilege days and as such the most appropriate referral provision is Section 6 of the Payment of Wages Act 1991.  I am further satisfied that the Respondent is well aware of the basis of this complaint based upon prior correspondence between the Parties and the complaint form.  Applying the aforesaid principles, in circumstances where the Complainant is self-represented and does not have the benefit of professional advice, I deem it just and appropriate to substitute Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006 with Section 6 of the Payment of Wages Act 1991.

Complaint referred to the WRC out of time and outside 12-month period for any extension of time

The Respondent submits that as the Complainant had retired on 24th August 2016, this complaint had been referred outside of the statutory 6-month time limit and given that an extension of time may only be granted up to 12 months, it is absolutely statute-barred.  The Complainant contends that time began to run from the date of his knowledge of his entitlement to the payment claimed in circa November 2023 and is therefore within time, being referred to the WRC on 13th February 2024. 

The time limit for a referral of a complaint under the Payment of Wages Act 1991 is governed by Section 41 of the Workplace Relations Act 2015 and entails a 6-month time limit from the date of contravention extendable up to 12 months if reasonable cause is shown.  Specifically, Section 41(6) of the Workplace Relations Act 2015 provides: “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) further provides: “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.” 

This complaint is extremely vague without any concrete evidence of a contractual entitlement to additional annual leave / privilege days or a precise sum claimed in lieu.  However, it is clear that any payment in lieu would have become due and owing before or on the Complainant’s retirement on 24th August 2016, being the date of the last possible contravention.  The wording of Section 41(6) of the Workplace Relations Act 2015 is very specific and unlike other legislative provisions on statutory time limits, does not make provision for referral of a complaint from the date of knowledge or where a delay in referring a complaint is due to a misrepresentation by an employer.  In the circumstances, I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, I do not have jurisdiction to either extend time and/or investigate same.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint.  I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, this forum does not have jurisdiction to investigate this complaint. 

Dated:   02/07/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Substitution / amendment of referral statutory provision for a complaint to the WRC - County Louth VEC -v- Equality Tribunal & Brannigan (2009) IEHC 370 - Galway-Mayo Institute of Technology -v- Employment Appeals Tribunal and Others [2007] IEHC 210 - ADJ-00006196 – Time-limit for referral of a complaint under Section 41(6) and (8) of the Workplace Relations Act 2015