Complainant

Respondent

Parties

Javier  Morales

Bidvest Noonan

Complainant

Respondent

Anonymised Parties

{text}

{text}

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-00052019-002

04/09/2022

The Complainant, a Cleaner, submitted two complaints which were heard together. This complaint is linked to ADJ-00046059 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.

Refusal to Accept Respondent’s Submissions

Submissions were received from the Respondent the evening before the first hearing on 14 September 2023. Despite this, the submissions were accepted at the hearing. During the course of the first hearing, the Complainant sought to raise a complaint of penalisation. Clear directions were given to the parties—the Complainant had one week to set out his complaint of penalisation, together with evidence and any witnesses regarding his claimed loss of the payment of €4,300. The Complainant filed his supplementary submissions on 20 September 2023, which were furnished to the Respondent on 24 September 2023 by the Workplace Relations Commission. Having reviewed the submissions in advance of the hearing and upon inquiry at the hearing of 8 October 2024, the Complainant confirmed that he did not make a complaint of penalisation, advising that it may have been a misinterpretation.

The Respondent was given a period of seven days to respond. No supplementary submissions were received until 5.23 pm on 7 October 2024. The reason given for the delay of 12.5 months was due to a change of representative within the same representative body. An apology for the delay was made and is noted. The Respondent confirmed that no extension of time was sought.

The submissions and accompanying documentation were not accepted at the hearing on 8 October 2023 by the Adjudication Officer. The reasons given were as follows: very clear directions were provided and agreed to by both parties on 14 September 2023, requesting supplementary submissions. Additionally, there was an extraordinary delay in filing documentary evidence along with legal submissions, compounded by the fact that the Complainant, a lay litigant, only received them the evening before the hearing.

The Respondent argued that it was prejudiced as a result of the refusal to accept the late submissions, as there was pertinent evidence in the appendix. This is not accepted, given that the Respondent was on notice of this complaint since 1 June 2023, the representative came on record via email dated 17 July 2023, and leniency was granted by the Adjudication Officer for the first set of late submissions on 13 September 2023, where no objection was received from the Complainant. Agreed time-bound directions were given on 14 September 2023; however, the Complainant nor the Workplace Relations Commission received them until the 11th hour, the evening before the hearing on 8 October 2024. Furthermore, the evidence the Respondent sought to rely on could reasonably be concluded to be in its possession in advance of the referral of the complaint to the Workplace Relations Commission, as it relates to payroll data from 2017 to 2023. For these reasons, I find that the Respondent was not prejudiced by the disallowance of its submissions, but rather it was the Complainant who was prejudiced.

The Workplace Relations Commission requests that parties file submissions at least 15 working days in advance of hearings, both through a guidance document and in its direct correspondence to the parties. This is to ensure that both parties have time to consider and, where necessary, take instructions. It is also to ensure fair procedures, where both parties know the case being made against them and avoid a trial by ambush.

 The Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC24 held an Adjudication Officer in his/her duties defined by Section 41 of the Workplace Relations Act 2015 was carrying out a quasi-judicial function where fairness is one of the fundamental components of the standard of justice administered under Art 37 of the Constitution. It cannot be considered to be fair, to the Complainant in this instance, where the Respondent chooses to ignore an Adjudication Officer’s explicit directions, and agreed to by the parties, at a hearing.

Despite giving clear reasons for refusing to accept the late submissions, two further applications to rely on the submissions were made during the course of the hearing. In this regard, Ms. Justice Bolger words in her judgment of Burke v Adjudication Officer and Workplace Relations Commission [2023] IEHC 360 are appropriate “A person’s obligation to respect a court and its important processes go hand in hand with their rights to litigate and their rights to fair procedures.”

Preliminary Matter – Time

It 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 Manner

It was his evidence that he sought a breakdown of his working hours, presenting email evidence of his requests from 2020 and 2021. Despite this, the Complainant’s evidence was that he did not receive the breakdown of hours.

The Complainant gave evidence that in 2019 he worked overtime but was refused it, despite making himself available from 2020 up to and including April 2021. His submission was that the additional time became part of his regular roster and therefore he was entitled to it.

It was only when his line manager returned after a period of absence in May 2021 that his normal working hours resumed. Email evidence was presented at the hearing.

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

Substantive Manner

It was Ms Hesnen’s evidence that the Complainant worked 73 hours over a two-week period which was his standard working hours. It was her evidence, that the Complainant worked approximately 20,000 hours in 2019, 20,500 hours in 2020 and 20,500 hours in 2021. Therefore, there was no reduction in hours.

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 period of hours of worked complained of related to 2020 up to May 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.

Payment of Wages- Jurisdiction – Submissions