Complainant

Respondent

Parties

Mr Okanlawon Akinola

Saint John Of God Community Services clg [amended on consent at hearing].

Representatives

Self-Represented

Ms Aleksandra Tiilikainen IBEC

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-00061514-001

12/02/2024

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

CA-00061516-001

12/02/2024

These matters came before the Workplace Relations Commission dated 12/02/2024.  The Complainant alleges contraventions by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent.  The date of the alleged deductions is 30/03/2023 in respect of CA-00061514-001 and 21/12/2023 in respect of CA-00061516-001.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 13/06/2024. 

The Complainant commenced employment with the Respondent as a Residential Social Care Worker on 04/06/2018.  The Respondent operates Health Service Executive funded services to children and adults with intellectual disability and to children, adolescents and adults with mental ill health. 

Both parties provided helpful written submissions in advance of hearing. 

At the outset of hearing there was a preliminary objection raised by the Respondent namely the issue of time limits in respect of submitting the complaint to the WRC.  It was indicated to the parties that I would hear submissions on the preliminary objection and reserve my position on same.  In the event that the preliminary issue is found for the Complainant then a decision on the substantive matter will follow.  In the event the preliminary issue is found in favour of the Respondent then I am precluded from considering the substantive case. 

As the Complainant presented as a litigant in person I provided information to him with regard to the necessary requirements and the well-established legal test in the context of seeking an extension of time. 

CA-00061514-001

Response to preliminary matter of time limits

The Complainant states he had confidence in his employer and he had engaged with his employer.  The Complainant submits he had engaged with his trade union on 08/12/2023.  The Complainant states that, as his trade union did not bring the case to the WRC, they were unable to represent him. 

The Complainant submits with regard to CA-00061516-001 that he had flagged it with Management and that he had to wait until the year ended before he could file his complaint. 

CA-00061514-001

Substantive matter

The Complainant submits on his WRC complaint form that he worked 2 separate sleepover hours aspect (8 hours respectively) of 2 sleepover duties (24- and 22-hours duties) as a wake night due to shift emergency circumstances and his employer refused to pay him accordingly.  The Complainant submits initially they refused to accept liability for the 16 hours claiming he had been paid correctly.  The Complainant submits after about 7 months of outright denial of any omission of payment, his subjection to a frustrating and stressing efforts to establish through correspondence, meetings and breakdown analysis of the payment he had received they now admit liability but refused payment offering Time in Lieu of the hours owed claiming it will set a precedent.

The organisation argument is that any hours worked within the sleepover hours aspect of a sleepover shift is normally offered back as Time in Lieu.  The Complainant submits he objected that is applicable in this situation because that is only applicable for a situation staff sleep was broken for a short period for support by service user and staff return to sleep during a sleepover period in a sleep over shift.  The Complainant submits in these 2 sleepover duties concerned his entire sleep period aspect of the sleepover shift was done as a waking night supporting service user due to emergency circumstances. 

The Complainant submits he did not go to bed at any period of the 22 hours and 24 shifts respectively.  The Complainant submits he worked straight for the entire period and this defeats the principle that underpins sleepover period as he did not go to bed at that point and it was not a situation that his sleep period was broken and then he returned to bed after support had been given. 

The Complainant submits another angle to this concerned 16 hours is sleepover period which is a standard 8 hours is not part of the statutory contracted 39 hours weekly/169 hours monthly but additional hours on top of it and is technically overtime hours but the organisation does not treat it as so.  The Complainant states he argued but the concerned 16 hours should be paid as overtime as it was additional hours on top of his contracted hours but that he was told outrightly they will not honour the hour as overtime.  The Complainant submits it is over a year since he did the hours and he is yet to be paid accordingly in the amount €366.88. 

At hearing the Complainant stated that he wants cash and not time in lieu and he does not agree with the agreement that was reached on this matter with the Respondent when he was represented by his trade union.   

CA-00061516-001

Substantive matter

The Complainant submits he worked 8 hours which qualified as overtime hours and these hours are additional hours on top of his weekly 39 hours, 169 hours monthly and 2028 hours annually.  This additional hours resulted due to a new roster adoption for his work location since 30/01/2023.  The Complainant submits he had flagged and pursued this to be addressed since March 2023 however it was only admitted/confirmed as hours owed to him outside my contractual hours in December 2023 and the Complainant submits he is refused payment accordingly to date in the amount of €288.00. The Complainant disputes the contents of the table provided by the Respondent which illustrates the actual hours worked as per rosters and the hours paid as per his payslips for the year 2023.  The Complainant states he is owed 4 hours overtime for the year 2023 and not 8 hours as initially claimed. 

CA-00061514-001

Preliminary Issue – Time Limits CA-00061514-001

The Complainant alleges that he did not receive pay for shifts he was rostered to work on 20 February 2023 and 10 March 2023.  Wages for the aforementioned shifts were paid at the end of each calendar month to which they relate.  The Complainant submitted his complaint to the WRC on 12 February 2024.  The cognisable period for this complaint is between 13 August 2023 and 12 February 2024. The Respondent submits that this complaint is out of time, notwithstanding the fact that the Complainant had the advice and support of Forsa Trade Union available to him.

CA-00061514-001

Substantive matter

The Complainant is employed with the Respondent as a Residential Social Care Worker.  The Complainant worked on 20 February 2023 and 10 March 2023. He was rostered for sleepover shifts. This means that the Complainant would start his shift at in the afternoon, work the floor until 23:00 and then sleep until 07:00 the next morning and finish his shift midday. On both shifts due to the medical needs of residents he ended up working and not being able to go to bed.  The Complainant’s line manager asked him did he want the shift to be paid as a sleepover or waking night, this was an error, and the shift should have been recorded as per the roster as a sleepover and he should have been paid the sleepover allowance.

The Complainant recorded the shift as a waking night shift, believing he would be paid by the hour for the entirety of the night duty, this is an error on his part.  As a permanent employee he is paid his contracted hours each week regardless of the type of shift, he would be paid various premiums depending on the shift for example in this case a single payment for a waking night duty.

Without prejudice to the Respondent’s preliminary position, Mr Brendan Kelly, Interim Residential Programme Manager, has met the Complainant on three separate occasions to explain why it should not have been recorded as a waking night shift.  In the last of the three meetings, he was accompanied by his Forsa Trade Union Representative.  At the most recent meeting an agreement was reached between the parties that due to the anomaly, the Complainant would be given 16 hours in lieu and that he would engage with his Line Manager to avail of same.   

As a permanent employee the Complainant is paid his contracted hours each week regardless of the type of shift and he would also be paid various premiums depending on the shift type outlined on the roster.  The Respondent submits that it must be acknowledged that due to the nature of the care provided by its services, there will be occasions where the residents will require attention during sleepover shifts. This is monitored by Mr Kelly, and in the result of the needs of the service users in a particular location becoming more demanding, or requiring usual attention during the sleeping period, the shift would be redesignated as a waking night shift on the roster and any payment of the associated premium would reflect same.  Any deviation from the current policy and roster structure would have significant cost implications on the Respondent, meaning that the shift typed identified in the roster would be automatically altered in the event of a resident waking during the night, resulting in an ability on the Respondent to budget appropriately.

The Respondent contends that the wages “properly payable” to the Complainant have been paid. Contrary to normal policy and procedure, a local agreement was reached with the Complainant in the presence of his Forsa Trade Union official that he had been awarded 16 hours in lieu.

At hearing the Respondent stated there was absolute agreement reached on this matter and he was surprised to hear of this complaint when notified it had been filed at the WRC.

CA-00061516-001

Preliminary Issue – Time Limits CA-00061516-001

The Complainant alleges that he is entitled to 8 hours overtime which he believes he is entitled to as the result of a roster change that commenced on 30 January 2023.  The Complainant submitted this complaint to the WRC on 12 February 2024.  The cognisable period for this complaint is between 13 August 2023 and 12 February 2024.  The Respondent submits that this complaint is out of time, notwithstanding the fact that the Complainant had the advice and support of Forsa Trade Union available to him.

Substantive matter

The Respondent changed the roster in the Complainant’s location to come into effect at the end of January 2023.  

The Respondent submits the Complainant calculated for all of 2023, what he would work given the new roster and has added this to the total amount of hours already worked on the old roster in the month of January.

The Respondent submits as a result of those calculations, the Complainant is alleging that he is owed 8 hours overtime, as he worked that number of hours above his contractual entitlement. 

The Respondent has calculated the exact number of hours the Complainant was onsite for vs the number of hours he has been paid for, on a monthly basis, and they amount to him being paid 8 hours more than hours onsite, meaning that there has been an overpayment in favour of the Complainant amounting to 8 hours which the Respondent is not seeking to recoup.

Without prejudice to the Respondent’s preliminary position, the Complainant was calculating his pay at 169 hours per month when he is actually paid 169.46 hours per month.  Furthermore, when the end of the month falls mid-week, the Complainant will generally have worked less hours that month.

The Respondent submits the Roster change and the scheduling of shifts was achieved in consultation and agreement with Forsa Trade union and viewed as a benefit to the Complainant and his colleagues.  The new rostering arrangements were effective from 30 January 2023.

In any instance, as outlined in the table exhibited, the Complainant was paid 8 hours above the actual hours worked for the year which is how the allocation of hours and rostering are distributed in the new roster i.e., total hours worked across a 12-month period rather than week by week.

CA-00061514-001

In relation to the preliminary objection that this matter is statute-barred, it is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions.  In that regard section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“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.” 

I note this complaint was referred on 12/02/2024 and the alleged contravention took place on 30/03/2023 in respect of CA-00061514-001. 

I find, therefore, that the herein complaint has been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act, 2015. 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six 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.” 

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay.  It is a matter for the Complainant to establish that there is reasonable cause for the delay.  It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay.    

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held 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 Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.  It is clear from the authorities that the test places the onus on the Applicant on 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 on the Applicant to establish a causal link 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 complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the proceedings. 

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. 

The Labour Court in the case of A Bank v. A Worker EDA104 stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay is an “irreducible minimum requirement.”

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] as follows:

“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.  In the context in which the expression reasonable appears 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.”

For an explanation of reasonable cause to succeed –

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                 A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that reason relied upon provides a justifiable excuse for the actual delay. 

The reason put forward by the Complainant in support of his application for an extension of time is based on a claim that he had confidence in his employer and he had engaged with his employer. 

I am mindful of the Labour Court determination in the case of Dublin City Council v. Skelly [DWT 212] where it was held as follows:

“… a claimant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay.” 

I also note the determination of the Labour Court in the cases of Brothers of Charity Services v. Kieran O’Toole [EDA 177] and Ervia v. Healy [PW/19/55] respectively where the Court held that deploying the employer’s internal grievance procedure did not operate to prevent an employee from a referring a complaint within the statutory requisite time limit. 

I have regard to the Labour Court determination in Business Mobile Security Ltd t/a Senaca Limited v. John McEvoy [EDA 1621] held as follows:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice.  He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.” 

I note the Complainant relies upon the fact that he had confidence in his employer and he had engaged with his employer as reasons for not filing his complaint with the WRC on time.   I also note the Complainant had the benefit of representation by his trade union.  I am unable to accept that engaging with an employer on the matters at issue provides a cogent reason which prevented the Complainant from filing a complaint with the WRC in line with the statutory time limits for the filing of such a complaint. 

I am of the view the Complainant cannot circumvent the time limits as set out in the legislation by seeking to rely on the fact he had engaged with his employer on the matter.  While the reasons relied upon by the Complainant may explain the delay I am unable to find they excuse the delay.  The Complainant has not met the standard of reasonable cause set out in the well-established test in the Cementation case of which I am mindful.  I am satisfied that nothing has been advanced by the Complainant that both explains and excuses the delay.

Accordingly, I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time.  

In light of the foregoing, I find the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a claim to the WRC under the Workplace Relations Act, 2015.  I find I have no jurisdiction to determine the substantive case under the specific complaint reference CA-00061514-001. 

CA-00061516-001

Turning now to the complainant under the specific complaint reference CA-00061516-001.  I note the Respondent position that this complaint is out of time.  I am satisfied the cognisable period for this specific complaint is between 13/08/2023 and the date of referral of the complaint namely 12/02/2024.  The date of the alleged contravention of the Payment of Wages Act, 1991 as provided by the Complainant is 21/12/2023 on which it is alleged the Respondent made an unlawful deduction from his salary. 

Therefore, I am satisfied the alleged contravention is within the cognisable period.

The Relevant Law

Section 5 of the Payment of Wages Act, 1991 provides as follows:

Regulation of certain deductions made and payments received by employers.

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) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

Section 5 of the Payment of Wages Act, 1991 provides as follows:

(5) Nothing in this section applies to— (a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of— (I) any overpayment of wages, 

The Relevant Facts

I note the Complainant states the alleged contravention in respect of CA-00061516-001took place on 21/12/2023 (date of the alleged unlawful deduction under section 6 of the Payment of Wages Act, 1991 when he alleges he was not paid overtime owed). 

I note by his own admission the Complainant had flagged this issue with the Respondent in April 2023 and he did not file his complaint until 12/02/2024 having identified 21/12/2023 as the date on which the Complainant alleges there was an unlawful deduction from his wages. 

I note the Complainant claims he worked four hours of overtime in 2023 for which he was not paid and it was unlawfully deducted on 21/12/2023.  I note the Respondent refutes this claim in its entirety and submits there has been an overpayment amounting to 8 hours which they are not seeking to recoup as provided for in the Payment of Wages Act, 1991 as set out above.

I must first establish the wages which are properly payable to an employee on the date of the alleged contravention before considering if a deduction has been made.  I am unable to find there was a deficiency or non-payment that I could identify as an unlawful deduction as envisaged by the legislation from the Complainant’s wages on the alleged date of contravention namely 12/12/2023.    I am satisfied that the wages properly payable to the Complainant on that date were paid to him.  I am satisfied there was no unlawful deduction from his wages on the alleged date of contravention.

Accordingly, for the reasons set out above I find CA-00061516-001as presented to be not well-founded. 

Time limits; reasonable cause; unlawful deduction;