Complainant

Respondent

Parties

Alessandra  Donati

Compass Catering Services Ireland Ltd

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-00057138-002

14/06/2023

The complainant submitted a complaint to the WRC on 14/6/2023 under the Payment of Wages Act, 1991, concerning a deduction of salary in respect of fifteen minutes overtime which she worked on each of the 5 days each week while employed with the respondent.

The complainant was employed as a Barista in the respondent’s catering services from 15/8/2022  until  24/5/2023.

Her gross weekly wage was €423.75.

She submitted her complaint to the RC on 14/6/2023.

The complainant gave evidence under affirmation.

The complainant states that the respondent made an unlawful deduction from her wages in respect of the fifteen minutes overtime which she worked each day.

The complainant was employed as a Barista in the respondent’s catering services from 15/8/2022 to 24/5/2023.

While her contract stated a working day of 7.45 to 15.35, she actually worked from 7.30 – 15.45.

She submitted an email from the Manager, dated the 12/8/2022, stating that her hours were 7.30 am to 15.45 with a rate of pay of €11.20 per hour. She was only paid for 7.5 hours a week and not for the 7.75hours which she worked. The Manager asked her to do this extra 15 minutes in order to set up the coffee station. The coffee shop opened at 8 am. He told her that this was requirement of the job.

She also worked until 15.55 to tidy up and clean up after the customers had left. She stated that she decided of her own volition to remain behind for the extra 10 minutes as opposed to the earlier morning start time when she was directed to do so.

 In response to the respondent’s statement that the clocking in records, submitted by the respondent representative, showed a start time of 7.45 and a finish time of 15.45, the complainant stated that the company records had been changed.

To the respondent’s point that her contract permitted her to take a grievance about this matter of working an extra 15 minutes per day, unpaid, she stated that it was difficult for her to go against the Manager. When she notified him that she was leaving, he stated that he did not want to deal with her anymore. She was to talk to other personnel instead.

Cross examination.

The complainant stated that she did not tell the HR Manager about the email from her Manager, which was produced for the first time at the hearing, stipulating a start time of 7.30 am, as she thought the HR Manager was aware of it.

 She noticed her clocking in records had been changed.

She asks that he complaint be upheld.

The respondent was represented by IBEC.

No witness for the respondent gave direct evidence.

The respondent denies that any unlawful deduction was made from the complainant’s wages.

Her contract provided for her to work 7.5 hours per day from 7.45- 15.45. Her clock in records recorded those times. Her records, submitted in evidence, showed that overtime was paid in the week 25/3- 29/3/23.

The respondent submits that the complainant was paid in accordance with her contractual entitlements. For an unlawful deduction to have taken place in accordance with the Act, it must be a deduction that was “properly payable” as per section 5 (6) of the Act. As the wages claimed were not properly payable, no jurisdiction, therefore, lies with the WRC to hear her complaint.

Her contract permitted her to take a grievance about this matter of working an extra 15 minutes per day. She did not exercise this right.

The respondent states that the WRC do not have jurisdiction to hear this complaint.

Preliminary issue.

Cognisable period.

The cognisable period for the purposes of this complaint is 15/12/22 -14/6/23 as per section 41 of the Workplace Relations Act, 2015. It 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

The complainant submitted her complaint to the WRC on 14/6/2023.

The complainant’s own evidence of a 7.30am start time which was convincing and not contested by any direct evidence is that the beginning of the contravention to which the complaint relates occurred on the 1/9/2022.

This leaves the complainant unable to comply with the statutory time limit for submission of a complaint as set out in section 41 (6) of the Act above.

The next matter to be considered -though not advanced by the complainant -is the “date of the contravention to which the complaint relates “and the admissibility of in time deductions occurring between 15/12/22 and 14/6/23. It is the case that the deduction of pay in respect of 15 minutes worked each day continued up until the complainant left her employment in 24/5/2023.

Her complaint form does not identify a date of deduction, but her evidence was that she was seeking payment for the 15 minutes deducted from each of the five days worked by her from the 1/9/22 up until the 25 /5/23.

The complainant’s evidence was that the requirement to work from 7.30 to 3.45 was put to her in an email from her manager on 18/8/22 and was operational from that date. This matter of when time should run from the original contravention- or could subsequent contraventions be added on to the out of time contraventions in order to confer jurisdiction on the complaint - was addressed in Health Service Executive v John McDermott where the High Court held that

“It follows therefore that if an employer has been making deductions x from the monthly salary of the employee since January 2010, a complaint which relates to deductions from January 2014 onwards and which is presented to a Rights commissioner in June 2014 will still be in time for the purposes of section 6 (4). If, on the other hand, the complaint was 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.”

This is how the complainant framed her complaint. It was, she stated, a deduction which ran from1/9/22-24/5/23 and applying McDermott above, cannot be deemed to be in time.

Extension of time as provided for in section 41 (8) of the Workplace Relations Act, 2015.

“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.”

In terms of section 41(8) availing the complainant, the matter of reasonable cause has been addressed in many decisions. In Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 the test was set out in the following terms: -

“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.”

In the present case, the complainant has submitted that she was hesitant about submitting a complaint fearing it might affect her working relationship. She further submitted that she was not aware of the rules governing the submission of complaints. However, in Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that lack of knowledge in this regard does not prevent the statutory limitation period from starting to run. She states

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

Hence while the complainant has presented an explanation for the delay, I cannot find that the complainant met the requirement to show reasonable cause for the delay in accordance with the established test found in Skanska.

Based on the evidence and precedent, I cannot find that have jurisdiction to hear this complaint.

I decide that I do not have jurisdiction to hear this complaint

Lack of jurisdiction Date of contravention.