PWD2457

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046547 (CA-00057465-005)

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991. The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015.

The following is the Court's Decision.

DECISION:

This is an appeal by Jinxiu Zheng of a Decision of an Adjudication Officer (ADJ-00046547, CA-00057465-005) made under the Payment of Wages Act 1991 (“the Act”) against his former employer Ming Feng Limited. The Adjudication Officer found that he had no jurisdiction to hear the complaint.

In this Determination the parties are referred to as they were at first instance. Hence, Jinxiu Zheng is referred to as “the Complainant” and Ming Feng Limited as “the Respondent”.

This appeal is linked to PWD2456.

The hearing

Both parties attended a hearing of the appeal scheduled for 27 March 2024. That hearing could not proceed when it became apparent that the Court appointed Interpreter was unable to interpret the proceedings. A subsequent hearing date of 4 July 2024 was postponed following an application from the Respondent’s legal representative, who came on record in May 2024. A third hearing date was scheduled for 6 September 2024. By email dated on 5 September 2024 at 5.04pm, the Respondent’s legal representatives advised the Court that they no longer acted for the Respondent and understood that another firm had been instructed.

The Respondent did not respond to efforts made by the Court to contact it before the hearing started, using the contact details provided.  The Court Secretary subsequently received a text from Mr Yuming Zheng of the Respondent company as follows: ‘Hi ， this is ming, the ex-employee has caused me too much problems, I am so stressed and depressed, I could not continue to run the shop, the company has ceased trading from Jun.  I do know if still to meet you, . If you think you still want to meet me ， we could arrange to meet in a coffee shop as I am not the owner of the restaurant anymore. Thanks. (sic)”.

Having considered the matter, the Court decided that sufficient cause had not been shown to justify adjourning the case. In making that decision, the Court had regard to the fact that both parties had lodged submissions to the Court, the Respondent had attended the initial hearing scheduled on 27 March 20204, this was the third occasion that a hearing was scheduled, the Respondent was on notice of the hearing, no application to postpone the hearing was made to the Court and the Complainant was present at the hearing with his representative to progress his appeal. 

Having regard to the above, the Court was satisfied that, in all the circumstances, a further delay would be contrary to the parties’ right to have a fair and expeditious hearing of the appeal determined within a reasonable timeframe. The Court decided that justice would not be served by postponing the hearing further. The Complainant was assisted at the hearing by an Interpreter.

Background

The Complainant is a 48-year-old Chinese national. He moved to Ireland from a village in the Fujin Province in China in July 2022 to commence employment with the Respondent as a Sous-Chef. The Respondent applied for an employment permit and visa on behalf of the Complainant. He was employed from 31 July 2022 until 15 January 2023. The Complainant does not speak English.

Preliminary Matter –Application for extension of time

The Complainant’s representative confirmed that an application to extend time was made at the WRC Hearing, although that application is not recorded in the Adjudication Officer’s decision.

The Complainant requests that the cognisable period for the complaint be extended back to include the entire employment period from 31 July 2022 to 15 January 2023. The complaint was lodged to the Workplace Relations on 3 July 2023.

The application is made on the basis that the Complainant was an especially vulnerable person, as a suspected victim of trafficking for labour exploitation. He did not speak English and was dependent on the Respondent for his accommodation, income and immigration status. The Respondent threaten to revoke his work permit if he did not pay a recruitment fee relating to his work permit. The Complainant was fearful that he would be “deported” and, as a Chinese national, inherently feared the police and prison.

The Complainant was confirmed as a suspected victim of human trafficking, after engaging with the MRCI and An Garda Síochána on 24 February 2023. MRCI does not employ legal personnel and is dependent on limited pro bona hours from solicitor firms. The Complainant was subject to harassment and abuse by the Respondent, which took an emotional toll on him leading to memory and organisational difficulties. Due to interpretation issues and extensive document gathering process, it took three months to facilitate a formal complaint to the WRC. These circumstances explain the delay and afford a reasonable cause for the delay in lodging a complaint to the WRC.

The Complainant relies on the decisions in Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0338, Patricia Lizbeth Oropeza Vedia v Juliet O’Connell Limited ADJ-00044487, and Sharanjeet Kaur v Bombay Bhappa Limited t/a Bombay House ADJ-00045992 wherein a suspected victim of human trafficking was granted an extension of time due to the inherent difficulties of said victims in support of his application to extend time. 

The Respondent did not attend the hearing to respond to the application.

Applicable Law Time Limits

Section 41(6) of the Workplace Relations Act 2015 specifies that:

“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”.

Section 41(8) specifies that:

“(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.”

Deliberation and Findings

The preliminary matter for determination by the Court is an application for an extension of time.

The Complainant asserts that the alleged contraventions under the Act relate to payments made to the Respondent in the period from 4 August 2022 to 30 September 2022. The complaint was lodged to the Workplace Relations on 3 July 2023, which is outside the statutory six-month time limit specified at s. 41(6) of the Workplace Relations Act 2015.

The Complainant requests that the cognisable period for the complaint be extended, as provided for at s.41(8) of the 2015 Act, to include the period which encompasses the alleged contraventions of the Act in the period from 4 August 2022 to 30 September 2022.  The application for extending time is made on the basis that the Complaint’s failure to present his complaint within time was due to reasonable cause.

The established test for deciding if an extension of time can be granted for reasonable cause is that formulated by this Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.  The test was set out 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.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated 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 O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The burden of proof in establishing the existence of reasonable cause rests with the Complainant. To discharge that burden, and for this Court to grant an extension of time, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time. Finally, the Court must satisfy itself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

The Complainant’s representative submits that there was both a valid reason and a justifiable excuse for the delay in lodging the claim in this case as the Complainant was an especially vulnerable person as a suspected victim of trafficking. He did not speak English, was dependent on the Respondent for his accommodation, income and immigration status, and was fearful that he would be “deported”.

The Court fully accepts that the Complainant had a low level of English. The Court also accepts that the Complainant engaged with An Garda Síochána and the MCRI at the end of February 2023in relation to the allegation of human trafficking and other health and social issues. However, no adequate explanation was provided to the Court to explain what prevented the Complainant lodging a complaint after he commenced engaging with these agencies. While the Complainant’s representative advised the Court that the MRCI does not employ legal personnel and is dependent on limited pro bona hours from solicitor firms, the Court does not accept this provide an adequate explanation for the delay in lodging a complaint to the WRC in the period from the end of February 2023 to 3 July 2023.

It is well established in case law however that the failure by a representative to submit complaints within the statutory timeframes does not constitute reasonable cause for the purposes of providing for an extension of time.

In this case the complaint was lodged to the WRC over 9 months after the alleged contraventions under the Act. Where there is a long delay in lodging a complaint, the Complainant is under a greater onus to prove reasonable cause. As set out in Cementation Skanksa a short delay may require only a slight explanation whereas a long delay may require more cogent reasons to explain why the Complainant was prevented from lodging a complaint within the six-month time limit set out in the Act. In the Court’s judgment no valid explanation to properly account for the delay has been furnished that offers an excuse or explains the delay in lodging a complaint form to the WRC on 3 July 2023. 

In all the circumstances, the Court finds that the Complainant does not meet the threshold outlined in Cementation Skanksa whereby the statutory timeframe within which he is permitted to refer his complaint under the Act can be enlarged for reasonable cause.

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

While the reasons submitted by the Complainant in this case may explain the delay, the Court finds that they do not provide afford a justifiable excuse for the delay.

Determination

The Court finds that the reasons provided by the Complainant are not sufficient to demonstrate reasonable cause for the delay in filing his complaint with the WRC.

Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission and is accordingly statute barred. 

In these circumstances, the Court cannot proceed to hear the substantive matter.

The appeal is rejected, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AR	______________________
29th October 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.