Complainant

Respondent

Parties

Paul  Mulligan

St Vincent's Private Hospital

Representatives

 IBEC

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-00061719-001

22/02/2024

Prior to handing in his notice in late 2022, the complainant received an email from the hospital management stating that all staff would receive a pay increase retrospective payment (Feb - Dec 2022) but that it would be paid in early 2023.

He contacted HR to say he would be leaving his employment in January 2023, so as  to make a special arrangement for payment.

The HR department was evasive in its response. He received correspondence in April 2023 that the payment had been made to staff, and he too sought payment.

A generic email  was sent stating that all staff in service had been paid and he inquired as to the position regarding staff that had ceased employment between January and March 2023. They did not reply.

He was informed over twenty staff were in a similar situation and that one staff member had taken action that would be heard/resolved in late 2023. He was advised to await the outcome of that. In late 2023 he emailed HR again with reference to this case and to seek payment but got no reply.

The complainant is aware that there is a six-month period within which a complaint may be made, and he has  copies of emails sent after his employment ceased.

The starting point on this issue is April 2023 when he found out about the payment, and he seeks an extension of six months due to the information outlined above. His colleagues were paid the cost-of-living increase for February to December 2022, and as he worked there for the same period and was not paid he submits that he is entitled to the payment.

The complainant alleges that he was paid less than the amount due to him on 29 March 2023.  He was employed by the respondent for approximately seven years from January 9th, 2017 as a Senior Physicist.

This complaint is manifestly out of time and therefore the Adjudicator does not have the jurisdiction to hear it.

The claim under Section 6 of the Payment of Wages Act, 1991 was submitted by the Complainant on February 22nd,  2024. His employment ended on January 6th,  2023. A period of more than six months has therefore elapsed between the date that he received any wages from his employer and the date of making this complaint.

 The decision to realign pay rates at the hospital was made on or before November 24th, 2022 and communicated to staff on that day. It was subsequently paid to all employees before the end of March 2023. Even that date is outside the six months period for making a complaint.  

Section 6(4) of The Payment of Wages Act, 1991 states the following in respect of time limits:

(4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.

Additionally, the Workplace Relations Act 2015 provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation. If a complaint is not within the time limit 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.

The respondent made legal submissions on this point including the test set out in  Cementation Skanska v Carroll, DWT0338, O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301,  Skelly v Dublin City Council, DWT212 and Business Mobile Security Ltd t/a Seneca Ltd v John McEvoy EDA 1621.

In addition, the Labour Court held in Business Mobile Security Ltd t/a Seneca Ltd v John McEvoy EDA 1621the claim was statute barred stating:-

“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”.

The respondent submits that the same principles apply in this matter.

In October 2022 the Government and public sector unions agreed an extension to the Building Momentum national pay agreement that was in place. The extension to the agreement provided for increases of 3% backdated to 2 February 2022, of 2% on 1 March 2023 and 1.5% or €750, whichever is greater, on  October 1st,  2023.

On November 24th, 2022, the CEO of the hospital wrote to all employees at the hospital at that time, to advise them of the hospital’s intentions with respect to the 2022 increase and subsequent realignment He advised that the payment of the retrospection / back pay would be paid in 2023.

On March 10th, 2023 the CEO wrote to all employees at the hospital at that time, to advise them that the payment would be paid in March and employees at the hospital subsequently had their back payments made in March 2023.

Strictly without prejudice to the preliminary argument that this claim is out of time, the respondent rejects the claim under the Payment of Wages Act in its entirety, as no unlawful deduction of wages has occurred in line with the renumeration stated in the Complainant’s contract of employment.

At no point has the Complainant received a salary below his contractual salary. In making this statement the respondent is taking into account not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

The only commitment made to the complainant during his employment with respect to the HSE pay award that was applied from 2nd February 2022 was that made by the CEO in his email of 24th November 2022 that being that his pay would increase by 3% on 1st December 2022.

His rate of pay subsequently increased as per the commitment made by the CEO on 24th November 2022.

The complainant is arguing that there was a deficiency in the payment of his wages. His  final pay as an employee was made on January 26th, 2023. Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”.

The wages “properly payable” at the time of his final pay slip following his resignation were the wages as advised to him in the contract of employment including any subsequent increments that had been advised. No deduction as defined in Section 5 of the Act has been made while he was employed by the Respondent. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to succeed.

The processing of back payments for current employees was not made until  March 28th, 2023, so any pay arising from that payment could not have been properly payable over two months earlier, on the occasion of January 16th,  2023.

The complainant has not provided objective justification or shown reasonable cause that prevented him from making this claim until February 22nd, 2024, that would allow for the cognisable period to be extended.

The respondent submits that this case is quite clearly out of time and that the Adjudication Officer does not have jurisdiction to hear it.

The preliminary point in this case is whether any aspect of the complaint falls within the cognisable period set out in the Act, or whether there is any basis to extend that period.

He left his employment with the respondent on January 6th, 2023, and while he says that the circumstances which now gave rise to the complaint had not, at that point crystallised, and that he only became aware of the situation in March, he did not make a complaint until February 2024.

Any complainant still has the formidable challenge of overcoming the legal test set out in Cementation Skanska v Carroll, DWT0338, and the other cases relied on by the respondent; the ‘explain and excuse test’.

That was expressed in that case as follows

It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time.  The Complainant’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 Complainant 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 this case the complainant attributed the delay to his efforts in seeking to have the matter resolved amicably through direct engagement with the respondent, and to get information he required to make a complaint.

Unfortunately for him, that does not meet the requirements of the test.

In any event, a complainant may make a complaint to the WRC without any documentation and simply on the basis of an alleged breach of any statute.  The necessity to provide supporting argument for a complaint arises only at the point when it is listed for a hearing.

Accordingly I find his complaint has not been made within the statutory time limits.

For the reasons set out above Complaint CA-00061719-001 is not well founded.

Time limits