PWD2424

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037882 (CA-00048524-001)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court on 27 February 2024 in accordance with Section 44 of the Workplace Relations Act, 2015.  The following is the Court's Decision:-

DECISION:

This is an appeal by Cillian O’Sullivan against a Decision of an Adjudication Officer (ADJ-00037882) made under the Payment of Wages Act 1991 (“the Act”). The Adjudication Officer found that the complaint was not well founded.

In this Determination the parties are referred to as they were at first instance. Hence, Cillian O’Sullivan is referred to “the Complainant” and HSE University Hospital Group Limerick is referred to as “the Respondent”.

Preliminary Matters – Time Limits

The Respondent raised a preliminary matter regarding the time limits for hearing the appeal. The complaint under the Act was submitted to the Workplace Relations Commission (WRC) on 8 February 2022. The complaint relates to an ongoing deduction from his wages from 14 January 2010.

Position of the Complainant

The Complainant commenced employment in July 2010 on a specific purpose contract as a Community Welfare Officer. In January 2011 he was reassigned to the role of Ward Clerk (Clerical Officer grade) and his pay scale changed. This change resulted in a loss of wages of approximately €6,000 per annum. His complaint under the Act relates to an ongoing deduction of wages since 14 January 2010.

The Complainant submits that he was redeployed from a Community Welfare Officer role to a Clerical Officer role as part of a redeployment scheme and his terms and conditions of employment should be protected. When offered the role of Clerical Officer, his previous employment was not terminated, and he remained on the HSE payroll.

The Complainant exchanged 200 emails with the Respondent about his contract and pay scales, but the Respondent never retained those emails or acknowledged the matter as a grievance. He spent over 10 years trying to resolve the matter and exhausted four stages of the grievance procedure before submitting his complaint to the WRC. That delay in submitting the complaint was not his fault.

The Complainant submits that he has lost approximately €6,000 per annum since 2010, which is the difference between the salary scales for the Community Welfare Officer and Clerical Officer roles.

Position of the Respondent

The complaint, which relates to an unlawful deduction of wages on 14 January 2010, is out of time having regard to the time limits under the Act.

The Complainant commenced employment as a Community Welfare Officer on a specific purpose contract relating to the Back-to-School Scheme on a salary of €29,218 (pro-rata). His contract terminated on the cessation of the project on 31 December 2010.

The Complainant was offered a temporary Clerical Officer position which he accepted in January 2011. He was appointed to the first point on the Clerical Officer scale (€23,187 at that time).

The Complainant completed and signed a HR102 to change his Terms and Conditions from that of a Community Welfare Officer to a Clerical Officer. After four years’ service, the Complainant was entitled to a Contract of Indefinite Duration. That contract was issued to him on 24 April 2015. The Complainant refused to sign the contract due to an ongoing issue with his pay scale.  His terms and conditions of employment are implied in the absence of a signed contract.

The Respondent refutes that the Complainant was redeployed from the role of Community Welfare Officer to a Clerical Officer role. He was not redeployed, as his position as part of the Back-to-School Scheme was not eligible for redeployment.

The Complainant’s queries about his contract and pay scales were addressed in 2012. There was extensive communication and meetings with Complainant at that time, and it was explained to him why the role of a Community Welfare Officer was not eligible for redeployment. He should have referred the matter to the WRC at that time, but he kept raising the same grievance. The Complainant raised the matter again when issued with a permanent contract in 2015. He progressed a formal complaint though the HSE Grievance Procedure (stages 1, 2 and 3) with outcomes issued to the Complainant dated 18 February 2021, 8 March 2021, 22 March 2021 and 28 April 2021. His grievance was not upheld.

The Complainant was successfully promoted to a Grade IV position on 2 May 2022 and to a Temporary Grade V position on 10 October 2022.

The Applicable Law

Time Limits

Section 41(6) and 41(8) of the Workplace Relations Act, 2015, 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.”

“(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.”

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

(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.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Findings and Conclusions:

The first matter for the Court to determine is whether the complaint is in time having regard to the time limits specified under the Workplace Relations Act 2015.

The Complainant lodged his complaint to the WRC on 8 February 2022, which means that the relevant period for consideration by the Court is confined to the six-month period prior to that date.  This timeframe encompasses the period from 9 August 2021 to 8 February 2022. 

When considering whether a complaint is in or out of time, the Court must have regard to the relevant authority of Hogan J in Health Service Executive v McDermott [2014] IEHC 331. Hogan J held that

“14 ...the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

Applying the law as set out by Hogan J, Section 41(6) requires a complainant to set out a specific contravention that occurred in the six-month period before lodging a claim, in order to ground a claim under the Act.

The Court considered how the initial complaint to the WRC was framed by the Complainant in this case. The WRC complaint form set out the complaint in the following terms:

“What is the date of the deduction?                         14/01/2010

What is the reason for the deduction?                     Redeployed to new role”

The accompanying text on the WRC form states, inter alia,

“I started work as a community welfare officer in July 2009…Since moving into the new role I was at a loss of approx. 6000 per annum. On my first day of starting my new role I started my grievance procedure but nothing was ever recorded by the HSE until 2021 where I got the opportunity to submit it again and it was documented. I sorry it has taken this amount of years for the complaint to come through but I have been pushing this for over 10 years and the first part was to make sure I had gone through the correct procedure with the HSE…”(sic).

From reviewing the WRC form and the accompanying text it is clear that the complaint has its origins in 2010 when the Complainant changed roles. As framed, the complaint relates to a period that commenced on 14 January 2010.

The Complainant submitted his complaint to the WRC on 8 February 2022 some 11 years later.

The Complainant argues that he was subject to ongoing deductions from his wages since 14 January 2010.  The time limit set out in Section 41(6) specifies that a complaint cannot be entertained unless it is presented after the expiration of the period of 6 monthsbeginning on the date of the contravention to which the complaint relates. The claim must be submitted within six months of the contravention to which the complaint relates.

The Complainant told the Court that he delayed lodging his complaint to the WRC as he wished to exhaust his employer’s internal grievance procedures before lodging an external complaint. While that course of action may be laudable and may explain the long delay in lodging his complaint, the Court’s jurisdiction is confined to assessing breaches of the Act that occurred within a six-month period before the complaint was submitted to the WRC (or a 12-month period where there is reasonable cause to extend the six-month time limit).

In the circumstances of this case, no specific contravention occurring in the six-month period prior to lodging a claim was identified on the WRC form or to the Court at the hearing. No evidence was adduced to support the contention that an unlawful deduction was made from the Complainant’s wages in the six-month period prior to lodging his complaint.

It is for the Complainant to set out the details of his claim. No details were provided regarding a contravention of the Act that occurred within the cognisable period for the complaint. As a result, the Court finds that the complaint was submitted outside the six-month timeframe allowed for bringing complaints underthe Act.

Determination

The complaint is statute barred.

The appeal is not allowed.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
GOG	______________________
11 March 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Garrett O'Grady, Court Secretary.