Complainant

Respondent

Parties

Javier  Morales

Bidvest Noonan (ROI) Ltd (amended on consent)

Complainant

Respondent

Anonymised Parties

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Representatives

  Self Represented

IBEC

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-00052005-002

04/09/2022

The Complainant, a Cleaner, submitted two complaints which were heard together. This complaint is linked to ADJ-00046822 also received by the Workplace Relations Commission on 29 July 2022. Submissions were received in advance of both hearings from the Complainant and evidence was heard on Affirmation. Mr. Ivan Akadic gave evidence on Affirmation as a witness for the Complainant. 

The Respondent was represented on both occasions. Ms. Sarah Hesnan, Business Manager, gave evidence on Affirmation on both dates. The name of the Respondent was corrected at the first hearing to Bidvest Noonan (ROI) Ltd.

The parties were provided with and availed of the opportunity to cross examine.

Preliminary Matter – Time

t was the Complainant’s evidence that he did not lodge his complaint with the Workplace Relations Commission within the statutory six-month period due to a “fear of appraisal,” where his employment would be terminated, or his hours reduced.

The Complainant was invited to set out his complaint in full in submissions within a period of seven days from 14 September 2024. While additional submissions were received within the agreed time period, the Complainant did not make any reference to or submission regarding this claim.

Substantive Claim

It was the Complainant’s evidence that the Respondent failed to pay him his full public holiday entitlement for 25 October 2021. It was his evidence that he was paid for 6 hours when based on his average working week of 43-hour week on 7 November 2022 (over a year later). It was his complaint that the Respondent failed to pay him for the additional 2.6 hours per day @ a rate of €11.20 per hour, a total amount of €29.12 being owed.

Preliminary Matter – Time

It was submitted by the Respondent that the complaint was out of time where the public holiday complained of was on 25 October 2021 with the Complaint Form dated 29 July 2022.

The Respondent relied onCementation Skanska v Carroll, DWT0338,  O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301 and Byrne v Quigley UD762/94 in its oral submission.

Substantive Claim

It was Ms Hesan’s evidence that the calculation of the Complainant’s working hours was correct where 6 hours were paid.

Preliminary Matter- Time

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.”

The Complainant lodged his Complaint Form pursuant to the Payment of Wages Act 1991 to the Workplace Relations Commission on 29 July 2022. Therefore, the relevant period for consideration in assessing a contravention under the Act, having regard to the six-month statutory time frame set down at Section 41(6) of the Workplace Relations Act, 2015, is the period from 30 January 2022 – 29 July 2022.

Where the public holiday complained about was on 25 October 2021, I find this is outside the relevant period for consideration in assessing a contravention under the Act. Furthermore, where no evidence was presented as to the reason for the delay in submitting the complaint, I find  the Workplace Relations Commission does not have jurisdiction to proceed with this complaint.

I find the Complainant’s complaint is statute barred.

In these circumstances, there is no jurisdiction to decide on the substantive matter under the Payment of Wages Act 1991.