ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045799
Parties:
| Complainant | Respondent |
Parties | Eamonn Harrington | Aer Lingus Ltd |
Representatives | Self-represented | Elaine Mettler |
Complaint(s):
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-00055781-001 | 23/03/2023 |
Date of Adjudication Hearing: 07/12/2023
Workplace Relations Commission Adjudication Officer: Paul McKeon
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The hearing was held in public, and evidence was taken on oath pursuant to the Workplace Relations (Miscellaneous Provisions) Act 2021, amending the Workplace Relations Act 2015.
I explained the changes arising from the judgment of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland, and the Attorney General [2021] IESC 24 on 6/04/21 and both parties agreed to proceed in the knowledge that the decision issued from the WRC would disclose both parties’ identity.
All of the evidence, submissions submitted have been considered herein. While the parties are named in this decision, for the remainder of the document, I will refer to Mr Eamonn Harrington as “the Complainant” and Aer Lingus Ltd as “the Respondent.”
At the hearing, the Complainant produced a three-page written submission outlining the timeline of events that related to his complaint. On querying if the Complainant had submitted this before in order for the Adjudication Officer and the Respondent to have time to read, the Complainant a lay litigant noted that he was not aware that he was required to do so.
While I afforded the Respondent the opportunity to take some time to consider the submission before the hearing commenced, the representative for the Respondent Elaine Mettler noted that as it was a minor submission, they did not object to its admittance at the hearing, nor did they request any extra time to consider.
It is in this context that I accepted the Complainants submission at the hearing and informed him to submit a digital copy to the WRC and to the Respodents which he did so shortly after the hearing on the 07 December 2023.
Background:
The Complainant submitted a complaint under the Payment of Wages Act 1991 to the WRC on 23 March 2023 alleging that he did not receive a once off payment of €1700.
The Complainant submits that the Respondent entered into a collective agreement with SIPTU on 18 July 2022 in respect of a “once off payment” which the Complainant submits he did not receive.
He states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991.
The Respondent submits that all payments due to the Complainant under his contract of employment and/or otherwise relating to his employment were paid to him on or before his employment ended on the 01 September 2022.
The Respondent further submits that the once off payment of €1700 agreed by way of agreement with SIPTU did not cover any employee who left employment on or before 01 October 2022 whether by reason of resignation, retirement or for cause was not eligible to receive the payment(s). Aer Lingus has applied the Agreement as intended in this regard.
The Respondent states also that there were no payments due to him during the cognisable period for this claim therefore its submitted that this claim is out of time.
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Summary of Complainant’s Case:
Preliminary issue of time limits The Complainant submitted a complaint on the 23 March 2023 under Section 6 of the Payment of Wages Act, 1991 alleging that he did not receive a once off payment of €1700.
He left employment on the 01 September 2022.
The Complainant in his reasoning for not submitting the complaint within the six-month time limit to the Workplace Relations Commission advised the hearing that as he was dealing with the matter directly with the Respondent, he asserted that it was only when it became clear that the Respondent would not reverse its position in regard to the once off payment, that he decided to then submit his complaint to the Workplace Relations Commission.
In addition, the Complainant also advised the hearing that it took him some time to comprehend and understand how to correctly lodge a complaint to the Workplace Relations Commission.
The Complainant further argued that he had had no previous involvement with the Workplace Relations Commission and was consequently unaware of the 6-month deadline for the making of complaints and it’s in this context that he believes he has shown reasonable cause for his late submission.
Outside the matter of time limits, the Complainant submits that Aer Lingus entered into a collective agreement with SIPTU on 18 July 2022 in respect of a “once off payment” that would be paid to each employee.
The Complainant informed the hearing that he did not receive this payment.
He states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991.
By way of background information, the Complainant submits that he worked for the Respondent since 1977 until the 01 September 2022 when he retired from employment.
The Complainant further submits that his complaint relates to an agreement by Aer Lingus with SIPTU that a once off payment of €1700 would be made to employees following confirmation of the acceptance of the Addendum Agreement 2022 and the Clarification Agreement 2022.
The Complainant informed the hearing that on 16 August 2022, the successful outcome of the ballot of members of SIPTU Ground Operations Staff (Clerical & Operative) was announced.
The Complainant further informed the hearing that the once off payment was to be made in the most tax efficient way commencing in October 2022.
As part of the agreement with Aer Lingus of 18 July 2022, the Complainant told the hearing that qualifying conditions for payment are:
The Complainant advised the hearing on this point that the money accrued from January 2022 and like any pay that was accrued throughout 2022 that had not been received by the employee should have been included in the final pay received by an employee either upon resignation or retirement.
On this note, the Complainant submitted that the Payment of Wages Act 1991, provides that any payment not made is in fact an illegal deduction.
The Complainant also submitted that he is of the understanding that from mid-October onwards 2022, employees were emailed by their mangers informing them that in order to receive the once off payment of €1700 they must apply through the HR portal of the Respondent.
The Complainant informed the hearing that following making an application to receive the once off payment of €1700, he was informed by a member of the HR Operations Team informing him that employees eligible for the payment must still be in employment from October onwards.
He was further informed that employees who retired prior to October 2022 are not entitled to the payment.
In the view of the Complainant, this condition is not included in the agreement.
By way of further information, the Complainant believes that other employees who retired in October 2022 received the first portion of the once off payment in December 2022.
In addition, the Complainant submits that he believes he was treated unfairly and in a manner that differs from that of his colleagues who also retired in and around the same time as him.
On the point made in the Respondents submission, the Complainant cited Paragraph 3.6 of the Respondents submission which states that "Any employee who left employment on or before 01 October 2022 whether by reason of resignation, retirement or for cause was not eligible to receive the payment(s). Aer Lingus has applied the Agreement as intended in this regard".
The Complainant advised the hearing that the Agreement does not state this intention based on his interpretation and understanding of its contents.
Furthermore, the Complainant submits that there is no cut-off date of 01 October in the copy of the Agreement furnished by Aer Lingus, therefore he disputes the assertion that he is not entitled to receive this payment.
For the reasons outlined, the Complainant states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991 and asks the Adjudicator to uphold his complaint.
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Summary of Respondent’s Case:
Preliminary issue of time limits The Respondent submits that the Complainant submitted this complaint under the Payment of Wages Act 1991 to the WRC on 20 March 2023.
He left employment on 1 September 2022.
The Respondent further submits that all payments due to him under his contract of employment and/or otherwise relating to his employment were paid to him on or before his employment ended.
The Respondent stated at the hearing that there were no payments due to him during the cognisable period for this claim which is the six months preceding the date of claim which the Respondent understood to be from the 21 October 2022 – 20 March 2023.
It is therefore submitted by the Respondent that this complaint submitted by the Complainant is out of time.
Notwithstanding, the preliminary point on time limits, the Respondent informed the hearing that should the Adjudicator extend the time limit for reasonable cause the Respondent respectfully submits that all payments due to the Complainant under his contract of employment and/or otherwise relating to his employment were paid to him on or before his employment ended on the 01 September 2022.
The Respondent further submits that the once off payment of 1700 agreed by way of agreement with SIPTU did not cover any employee who left employment on or before 1 October 2022 whether by reason of resignation, retirement or for cause was not eligible to receive the payment(s). Aer Lingus has applied the Agreement as intended in this regard.
The Respondent further submits that there were no payments due to him during the cognisable period for this claim which is the six months preceding the date of claim so from 21 October 2022 – 20 March 2023.
By way of background information, the Respondent submitted that the Complainant was employed in Aer Lingus from 22 August 1977 to 01 September 2022 when he retired from employment.
The Respondent accepts that Aer Lingus entered a collective agreement with SIPTU on 18 July 2022 in respect of a “once off payment” which was subsequently approved following a ballot of SIPTU members.
The Respondent submits that the Agreement provided that:
· It is the case that by agreement with SIPTU, the payment was split in two separate tranches to enable and maximise tax efficiency with the first payment made in the form of an “AllGo” voucher in November 2022 to the value of €1,000 (in line with the Revenue Commissioners Small Benefit Exemption Scheme limits for payments from employers to employees (which increased from €500 to €1000 in Budget 2023), and a subsequent payment of the balance amount of €700 again the form of an “AllGo” voucher in January 2023.
The Respondent informed the hearing that where expressly requested by individual employees, the payments were paid through payroll in two instalments (in November 2022 and January 2023).
The Respondent advised the hearing that any employee who left employment on or before 01 October 2022 whether by reason of resignation, retirement or for cause was not eligible to receive the payment(s).
It is in this context that the Respondent submits that Aer Lingus has applied the Agreement as intended.
The Respondent further advised the hearing that it is the position of Aer Lingus that the Complainant is not entitled to the payments sought as he was not in employment as at the cut-off date for the payments which was 1 October 2022.
In addition, the Respondent told the hearing that to ground a successful complaint under Section 6(1) the Payment of Wages Act 1991, a claim must establish that there has been an unlawful deduction contrary to Section 5 of the Act.
In this context, the Respondent submits that there has been no deduction or non-payment of any monies owed to the Complainant in the course of his employment with Aer Lingus and during the cognisable period of this claim.
The Respondent further submits that the Complainant does not have an express or implied contractual entitlement to the monies claimed.
For the reasons outlined above the Respondent submits that the Adjudicator should not uphold this complaint.
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Findings and Conclusions:
The Complainant submitted a complaint under the Payment of Wages Act 1991 to the WRC on 23 March 2023 alleging that he did not receive a once off payment of €1700.
The Complainant further submits that the Respondent entered into a collective agreement with SIPTU on 18 July 2022 in respect of a “once off payment” which the Complainant submits he did not receive.
He states that the refusal to make such a payment is contrary to the Payment of Wages Act 1991.
The Respondent submits that all payments due to the Complainant under his contract of employment and/or otherwise relating to his employment were paid to him on or before his employment ended on the 01 September 2022.
The Respondent further submits that the once off payment of € 1700 agreed by way of agreement with SIPTU did not cover any employee who left employment on or before 1 October 2022 whether by reason of resignation, retirement or for cause was not eligible to receive the payment(s). Aer Lingus has applied the Agreement as intended in this regard.
The Respondent further submits that there were no payments due to him during the cognisable period for this claim which is the six months preceding the date of claim so from 21 October 2022 – 20 March 2023 and that therefore submitted that this claim is out of time.
While I note the Respondents point on the cognisable period, there appeared to be a slight error in understanding of when the Complainant submitted his complaint.
In this regard, the Complainants complaint was actually submitted to the Workplace Relations Commission on the 23 March 2023 therefore the first preliminary matter I will address will be in regard to if any payments were due to be paid to the Complainant during the cognisable period for this claim which is the six months preceding the date of claim for this claim which is the 24 September 2022-23 March 2023.
He left employment on 01 September 2022.
On that point, the Complainant in his reasoning for not submitting the complaint within the six-month time limit to the Workplace Relations Commission advised the hearing that as he was dealing with the matter directly with the Respondent, he asserted that it was only when it became clear that the Respondent would not reverse its position in regard to the once off payment, that he decided to then submit the complaint to the Workplace Relations Commission.
In addition, the Complainant also advised the hearing that it took him some time to comprehend and understand how to correctly lodge a complaint to the Workplace Relations Commission.
The Complainant further argued that he had had no previous involvement with the Workplace Relations Commission and was consequently unaware of the 6-month deadline for the making of complaints and it’s in this context that he believes he has shown reasonable cause for his late submission.
The Respondent asserted that the Complainant submitted his complaint to the Workplace Relations Commission under the Payment of Wages Act 1991 on 20 March 2023. He left employment on 1 September 2022.
It is therefore submitted by the Respondent that all payments due to him under his contract of employment and/or otherwise relating to his employment were paid to him on or before his employment ended. There were no payments due to him during the cognisable period for this claim which is the six months preceding the date of claim therefore the Respondent submitted that this claim is out of time.
The Respondent also submitted that the Complainant’s explanations for the delay in meeting the 6-month deadline did not constitute reasonable cause as provided for in the Workplace Relations Act 2015.
Preliminary Matter of Jurisdiction In considering whether or not there are grounds for extending the time, what the Complainant has to show is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.
I have reviewed the presentations and submissions of the parties with respect to the time limits.
I do not accept the Complainant’s contention that his delay in submitting his complaint is as a result of his ongoing engagement and effort to resolve the matter with the Respondent.
The Complainant was on notice for a long period of time that the Respondent position was unchanging, and he was not entitled to the payment, therefore I see no reason why the Complainant did not make a decision to lodge a complaint to the Workplace Relations Commission earlier than he had done so.
In this regard, while I note the Complainants point that it took him some time to understand how to lodge a complaint to the Workplace Relations Commission, I also note he did not lodge the complaint until the 23 March 2023.
Additionally, while I also note the Complainants claim he was unaware of time limits and never had any dealings with the Workplace Relations Commission in the past, I cannot accept that ignorance of the law in justifying the delay in making the complaint.
Accordingly, I find that the Complainant has failed to meet the test of reasonable cause as set out by the Labour Court in DWT0338 Cementation Skansa v Carroll.
The Complainant has also failed to offer a compelling explanation for the delay in submitting the complaint.
Accordingly, I must conclude that the complaint is out of time, and I have no jurisdiction to investigate the substantive matter.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The complaint is out of time and consequently I have no jurisdiction to investigate the complaint.
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Dated: 11th March 2024
Workplace Relations Commission Adjudication Officer: Paul McKeon
Key Words:
Payment of Wages Act, 1991, Time Limits, Out of Time |