Complainant

Respondent

Parties

Grace  Myslinski

Respond

Representatives

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-00061713-001

21/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00061713-002

21/02/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the complainant undertook to give their evidence under affirmation.  Two witnesses for the respondent also undertook to give evidence under affirmation, however only one of the respondent’s witnesses gave evidence.  The parties were offered the opportunity to cross examine the witnesses for the opposing party.

A preliminary issue was raised regarding the time frame for submission of the complaints.

The complainant submitted that she was not paid for 270 hours of time off in lieu (TOIL) when she retired with effect from July 2022.  The complainant also submitted that she was not paid for 20 days annual leave to her choose entitled when she retired with effect from July 2022.

The complainant stated that in previous years when she worked up time off in lieu, she was paid at the end of a work period. That period amounted to either two or four weeks. She noted that this changed in 2020 when the respondent introduced a new payroll system. She noted that she had built up 270 hours of time off in lieu over the years 2020, 2021 and 2022. She was informed on her final day in the office that the respondent would not be paying for any time off in lieu at that time. She stated that she was told that there would be no problem and that she would be paid at a later date. She noted that she worked for the respondent for more than 20 years that it was always understaffed she was required to work the additional time by her line manager.

The complainant also stated that she was informed that she would not be paid for the 20 days annual leave that she had built up over the previous years.

The complainant confirmed that she did not raise the matter with her employer at any time between when she retired in July 2022 and when she wrote to the chairperson of the respondent organisation in September 2023. She noted that she was offered a settlement in October but refused same and thereafter the offer was withdrawn. She then took a complaint to the WRC on 21 February 2024 after having heard nothing from the company.

Under cross examination she confirmed that earlier in her career, she submitted timesheets and was paid for the time that she worked. She confirmed that matters changed in 2020 when a new system was brought in. She confirmed that she was told on her final day in the office that the payment amount in respect of TOIL and the outstanding annual leave would not be paid that week.  She received no further communication on these matters from her employer.

The complainant confirmed that she was informed that there was an investigation into the issue of leave in lieu and annual leave carryovers but could not recall when she was so informed. She recollected that this may have been in the spring of 2023. She noted that her former line manager informed her that there was an investigation going on. She noted that her former line manager told her the investigation had concluded in August 2023 and, thereafter, wrote to the respondent regarding the matter.  She stated that she did not pursue the matter as she trusted the respondent would regulate matters.

The witness for the complainant stated that he made a submission regarding the TOIL built up by the complainant in January 2021 for the year 2020 and in February 2022 for the year 2021. He was told by senior management they were looking into matters but did not communicate with the complainant any further on the matter. He found out shortly before the complainant retired that neither the TOIL nor the annual leave built up would be paid to her.  The complainant was informed of this on the morning she retired.

Under cross examination the witness confirmed that the TOIL hours were not uploaded to the system in 2021 nor in 2022. He noted that by February 2023 the company approached its employees to ‘bridge the gap'.

The respondent submitted that the matters raised by the complainant are out of time. She retired in July 2022 but only made a submission to the WRC in February 2024. The respondent submitted that even with an extension permitted by the act of up to an additional 6 months, this still left the complaint outside of the time frame envisaged by the legislation.

The respondent conceded that the complainant worked 276 hours and was not paid for those hours. It conceded she was a diligent employee but submitted that its policy regarding carryover of TOIL was clear and that there was a limit of 4 hours that could be carried over. The respondent submitted that this was noted in the complainant’s contract and furthermore that the revised policy was sent to all staff, and that the complainant acknowledged receipt of this updated policy on 16 February 2022.

The respondent submitted that the complainant was paid for statutory leave, she had built up an entitlement to 16 days but was paid for 17 days of leave that occurred in 2022. The days in question under the complaint refer to days built up during 2020 and 2021.

Notwithstanding the substantive issues, the respondent submitted that both of these complaints are outside of the time frame envisaged by the legislation, a six-month period which may be extended to 12 months. The respondent submitted that the complainant did not pursue matters within the time frame and only lodged the complaint with the WRC in February 2024.

The respondent witness worked as the People &v Culture Manager for the company.  She noted that the annual leave year runs on a calendar basis and that the annual leave policy does not permit an employee to carry over leave from one year to another, save in exceptional circumstances which have to be signed off by the HR manager. The witness confirmed that when the complainant retired, she was paid for the balance of leave built up during that leave year.

Under cross examination the witness was asked why complainant was not told there was a problem by HR. In response the witness noted that HR only deal with line managers and that it had informed her line manager that neither the annual leave nor the leave in lieu would not be paid over.

Having considered the submissions from both parties and the evidence presented by the witnesses, I am satisfied that the complainant was aware that she was not going to be paid for the annual leave that she carried over from 2020 and 2021 at the date of her retirement. I am satisfied that the complainant was also aware that she was not going to be paid for the time off in lieu at the same time. 

The complainant confirmed in evidence that she did not raise the issue with the respondent over the following year and only wrote to the respondent in September 2023. She then took a complaint in February of 2024 to the WRC.

Section 41(6) & (8) of the Workplace Relations Act, 2015 state 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.

The foregoing legislation permit claims to be lodged with the WRC within a six-month period from the date of contravention.  This is extendable by a maximum period of another six months. The complainant lodged her complaints in February 2024, some 18 months after she retired and was first informed that neither the TOIL no carried over annual leave for 2020 and 2021 would be paid. Accordingly I am satisfied that these complaints were taken outside the time frame comprehend it by the legislation and I find that the WRC has no jurisdiction to entertain these complaints.

Having regard to both complaints submitted and to the written and oral evidence presented in relation to this matter, my decision is that the complaints were made outside of the timeframe provided for in legislation.  Accordingly the WRC may not entertain the complaints presented.

Payment of Wages – Organisation of Working Time Act – Workplace Relations Act – complaint submitted outside legislative timeframe