Complainant

Respondent

Parties

Ms Tinka  Zapryanova

Borgo Accounting Ltd

Representatives

Self-Represented

Mr Paul Carroll                         O’Mara Geraghty McCourt

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-00064219-001

21/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00064249-001

23/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064249-002

23/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00064366-001

27/06/2024

These matters came before the Workplace Relations Commission dated 21/06/2024, 23/06/2024 and 27/06/2024 respectively.   The Complainant alleges contraventions by the Respondent of provisions of the above listed statutes in relation to her employment with the Respondent.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 30/09/2024.

The Complainant at all material times was employed as an accountant by the Respondent.  The Respondent is a company engaged in the provision of a range of accounting services.

The Complainant commenced employment with the Respondent on 26/07/2021 and her employment ended on 31/01/2024.  The Complainant worked a 24-hour week for which she was paid €2777.77 gross per month. 

CA-00064219-001 complaint pursuant to section 6 of the Payment of Wages Act, 1991 (“the 1991 Act”).

The Complainant claims an unlawful deduction on 31/12/2023 in the amount of €801.29 for 5 sick days not paid to her.

CA-00064249-001 complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001 (“the 2001 Act”).

The Complainant claims she worked 20 minutes extra per week after the hours of full-time employees were reduced.  The Complainant alleges she was led to believe the working hours of full-time staff were reduced by 4% and she based her pro-rata reduction on that.  The Complainant alleges the hours of full-time staff were reduced by 5.33% and she has worked 20 minutes extra per week which she should not have if she had been treated equally as a full time employee. 

CA-00064249-002 complaint pursuant to section 6 of the Payment of Wages Act, 1991 (“the 1991 Act”).

The Complainant claims her working hours should have been 23.67 per week and she was required to work 24 hours.  The Complainant claims an unlawful deduction on 31/01/2024 in the amount of €472.18 (wages) and €37.77 (holiday pay). 

CA-00064366-001 complaint pursuant to section 77 of the Employment Equality Act, 1998 (“the 1998 Act”).

The Complainant claims discrimination on gender grounds; in conditions of employment; unlawful treatment in not promoting her; and in discrimination against her in Other. 

The Respondent denies all claims.  

At the outset of hearing the Respondent representative raised two preliminary issues namely in respect of statutory time limits in the first instance and a claim that the complaint of discrimination lacks any evidential basis and should be dismissed on the basis of a failure to establish a prima facie case of discrimination in the second instance. 

It was indicated to the parties that I would hear submissions on the preliminary issue in the matter of statutory time limits in the filing of complaints to the WRC and reserve my position on same.  In the event that the preliminary issue is found for the Complainant then a decision on the substantive matter will follow.  In the event the preliminary issue is found in favour of the Respondent then I am precluded from considering the substantive case.

I heard oral submissions from both parties on the matter of time limits and I reserved my position on same.  I proceeded to hear the substantive case having advised the Respondent that the claim of discrimination would be a matter for evidence and having explained to the Complainant the onus of the burden of proof on her in terms of her requirement to establish primary facts or facts of sufficient significance which may give rise to an inference of discrimination as opposed to mere assertions or speculation. 

Both parties provided helpful written submissions including supporting documentation in advance of hearing for which I am grateful.  Documents submitted on request post hearing by the Respondent have been copied to the Complainant and considered by me namely a time sheet and a copy of an email dated 06 January 2023. 

CA-00064219-001

CA-00064249-001

CA-00064249-002

CA-00064366-001

As per written submission response to preliminary matter of time limits

I kindly request the Adjudication Officer to consider and permit the extended time limit for my complaint under Section 6 of the Payment of Wages Act, 1991, as provided in Section 41 (8) of Workplace Relation Act 2015.

My delay to present the complaint to the Workplace Relations Commission was due to:

Health reasons - chronic back pain resulting in limited physical capacity. I have been on continuous sick leave as from 1st February 2024. Relevant evidence for my medical condition, continuous treatment etc. is provided in the Booklet of evidence;

Financial pressure resulting from the significant reduction in my income due to the unfair dismissal and my medical condition, which prevented me from obtaining appropriate paid legal advice or engaging a solicitor;

As a not native English speaker I had no experience of navigating the complexities of employment law.

The Complainant submits the same narrative as set out above in her application to extend time in regard to all the specific complaints referenced above. 

Oral submissions of Complainant in response to preliminary matter of time limits

The Complainant submits that she physically and emotionally had a problem searching for information and she submits she does not have knowledge of employment law and it was not easy for her to gather all the necessary information. 

The Complainant submits she has worked here in this country for 16/17 years but she has not worked in the legal sphere and she never had any issues. 

The Complainant submits she couldn’t be expected to know anything about employment law. 

As per written submission on preliminary matter of time limits

In her Complaint Reference CA-00064249-001 the Complainant is seeking adjudication by the WRC under section 16 of the Protection of Employees (Part-Time Work) Act, 2001, and in Complaint Reference CA-00064249-002 she is seeking adjudication under section 6 of the Payment of Wages Act, 1991.

Both of these complaints relate to a change in the Complainant’s working hours on 1 January 2023. The Complainant is asserting that the change from 25 hours a week to 24 hours a week from 1 January 2023 should in fact have been a reduction to 23.67 hours per week.  She makes this assertion on the basis of the amount by which the hours of full-time employees changed at that time.

She confirms in her complaint that

a) “In December 2022 the management formally informed all staff that the working hours will be reduced across the board by 2 hours for full time employees from 1st January 2023 allowing staff to finish work at 3:30pm instead of 5:30pm”.

b) Later in January 2023 she “drew the conclusion… that the hours of full-time staff were reduced by 1.5 working hours”.

c) Subsequently it came to her attention in July 2023 that full-time employees working hours had indeed been reduced by 2 hours a week.   Both of these complaints relate to changes in working hours that took place on 1st January 2023, and which the Complainant was aware of in December 2022 and had further confirmation of in July 2023. 

The Respondent submits that both of these complaints are out of time.  The complaints were submitted to the WRC on 23rd June 2024 which is a date after the expiration of the period of 6 months beginning on the date of the alleged contravention to which the complaint relates.  Under section 41(6) of the Workplace Relations Act 2015 an adjudication officer should not entertain this complaint.

In her Complaint Reference CA-00064219-001 the Complainant is seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991.  She complains that she was not paid in full for a period of sick absence of “8 days in December” and that she was only paid for 3 of these days.

The Complainant was on sick absence for eight days between Monday 27th November and Thursday 7th December 2023.  She was paid for three of these days in her December salary which was paid to her by credit transfer on 14th December 2023.

The date of the deduction from wages to which the complaint refers was 14th December 2023.  This Complaint was submitted to the WRC on 21st June 2024, a date after the expiration of the period of 6 months beginning on the date of the alleged contravention to which the complaint relates.  The Complainant has not made any argument under section 41(8) of the Workplace Relations Act 2015 that her failure to 3 present the complaint or refer the dispute within the required six-month period was due to reasonable cause.  Under section 41(6) of the Workplace Relations Act 2015 an adjudication officer should not entertain this complaint. 

In Complaint Reference CA-00064366-001 the Complainant is seeking adjudication by the WRC under section 77 of the Employment Equality Act, 1998 in relation to a complaint that she was treated less favourably during her employment because of her gender.

The complainant identifies eight issues at work which, she claims, are related to gender discrimination against her:

a) The promotion of two male colleagues in December 2022.

b) Providing male staff members with families and children with “special accommodation (paternity leave, parental leave and annual leave) taken even during the busiest times in the practice both in in October/November 2022 and then in October/November /December 2023”.

c) Special accommodation concerning her disability. d) Failure to address a grievance of 16th October 2023. e) Being unfairly dismissed on 20th December 2023.

f) A failure to furnish written terms and conditions of employment “effective from 1st January 2023”.

g) Failure to pay for overtime worked up to 15th November 2023.

h) Not being paid sick pay in respect of sick absence between 27th November and 8th December 2023.

The Complainant’s last day of work was 20th December 2023, following which she did not have to attend for work during her notice period up to 31st January 2024.  The Complainant has not provided details of any issue occurring after the date of 20th December 2023.  Each of the eight issues listed above clearly arose on dates on or before 20th December 2023

The Respondent submits that this complaint is completely out of time. The complaint was submitted to the WRC on 27th June 2024 which is a date after the expiration of the period of 6 months beginning on the date of any of the above alleged contraventions to which the complaint relates.

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

CA-00064219-001

I note this complaint was referred to the WRC on 21/06/2024.  I note this is a complaint pursuant to section 6 of the Payment of Wages Act, 1991 (“the 1991 Act”).  The cognisable period for the purposes of the 1991 Act is from 22/12/2023 to 21/06/2024.   I note the Complainant submits the date of the alleged unlawful deduction was 31/12/2023. 

However, I note 14/12/2023 is the date on which the Complainant was paid for three days of sick leave rather than eight days which she claims should have been paid to her arising from absence on sick leave from Monday 27th November to Thursday 7th December 2023.  I am satisfied the date of the alleged unlawful deduction is 14/12/2023.  Therefore, I find this claim falls outside the cognisable period. 

CA-00064249-001

I note this complaint was referred to the WRC on 23/06/2024.  Therefore, the cognisable period is from 24/12/2023 to 23/06/2024.  I note this is a complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001 (“the 2001 Act”).  I note the alleged contravention to which the complaint relates occurred in January 2023 when working hours of all staff were reduced and when the Complainant claims she was treated differently to full time employees as she worked 20 minutes extra per week on a pro-rata calculation until her employment ended 31 January 2024.  I am satisfied this complaint falls within the cognisable period.           

CA-00064249-002

I note this complaint was referred to the WRC on 23/06/2024.  Therefore, the cognisable period is from 24/12/2023 to 23/06/2024.  I note this is a complaint pursuant to section 6 of thePayment of Wages Act, 1991 (“the 1991 Act”).  The Complainant alleges the date of unlawful deduction as 31/01/2024 in circumstances where she claims that she was required to work 24 hours per week but she should only have been required to work 23.67 hours per week in the intervening period since 1 January 2023.  I am satisfied this complaint falls within the cognisable period.      

CA-00064366-001

I note this complaint was referred to the WRC on 27/06/2024.  Therefore, the cognisable period is from 28/12/2023 to 27/06/2024.  I note this is a complaint pursuant to section 77 of the Employment Equality Act, 1998 (“the 1998 Act”).   

I note the Complainant has not provided facts of sufficient significance to give rise to a prima facie case of discrimination in the six-month period prior to filing this complaint namely from 28/12/2023 to 27/06/2024.  I note the Complainant’s last day of work was 20/12/2023.    

For completeness,  I have considered the case of  Hurley v. County Cork VEC [EDA 1124] where it was held that occurrences of alleged discrimination outside of the statutory time limit set out in the Act can only be considered by the WRC or the Labour Court where the last act relied upon within the statutory time limit and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum.  It is necessary that a discriminatory act occurred within the cognisable period in order for an event occurring outside of that period to be considered as part of what is commonly referred to as a continuum meaning a continuous act of discrimination.   

The Labour Court noted in Occipital Limited v. Joseph Hayes[EDA 184] that it was -

“settled law that in order for alleged acts of discrimination to be considered as representing a continuum of discrimination it is necessary to establish that an act of discrimination has actually occurred within the cognisable period set down by the Acts for the making of a complaint.”  [emphasis added] 

I find, therefore, for the reasons set out above that CA-00064219-001 pursuant to the 1991 Act and CA-00064366-001 pursuant to the 1998 Act respectively have been lodged outside the statutory time limits.

The Complainant is seeking an extension of time and she has made submissions thereto as set out above.     

The Relevant Law 

In relation to the preliminary objection that these matters are statute-barred, it is necessary to examine the facts giving rise to the complaints set out above in light of the relevant legislative provisions.  In that regard section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“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) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six 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 discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay.  It is a matter for the Complainant to establish that there is reasonable cause for the delay.  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. 

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held 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 Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.  It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  Secondly, the onus on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.  Thirdly, the court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.  It is the actual delay that must be explained and justified.  Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the proceedings. 

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. 

The Labour Court in the case of A Bank v. A Worker [EDA104] stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay is an “irreducible minimum requirement.” [emphasis added]

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] 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.  In the context in which the expression reasonable appears it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time.  The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

For an explanation of reasonable cause to succeed –

(i)               A complainant must explain the delay and afford an excuse for the delay.

(ii)              The explanation must be reasonable.

(iii)            There must be an objective standard applied to the circumstances of the case.

(iv)            There must be a causal link between the circumstances and the delay.

(v)              A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that reason relied upon provides a justifiable excuse for the actual delay. 

I note the Complainant seeks to rely on health reasons; financial pressure which prevented her from obtaining appropriate paid legal advice; and a reliance on her lack of legal knowledge and her lack of proficiency in the English language. 

I find the Complainant’s submissions regarding her application for an extension of time to be inconsistent with and not borne out by the facts as I note the Complainant filed previous complaints with the WRC on 19/02/2024 and 24/04/2024 respectively.  On that basis I can find no impediment rendering her incapable of submitting the within complaints within the statutory time limits.    

I am satisfied there was nothing to prevent the Complainant from bringing these complaints on time to the WRC as I do not accept the filing of which could reasonably be seen to be more onerous than the filing of her previous complaints. 

I note the Complainant submits that financial pressure prevented her from obtaining appropriate  legal advice.  However, it is a fact that between 50 and 60% of complainants filing complaints to the WRC are unrepresented.  Furthermore, there is no cost implication in bringing a claim to the WRC.

Finally, I note the Complainant submitted at hearing that she could not be expected to know anything about employment law. 

Notwithstanding, I am mindful of the decision of the High Court in the case of of Minister for Finance  -v-  CPSU and Ors [2007] 18 ELR 36, wherein the Court said:-

”..ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing the statutory time limit.”

More recently in July 2024 the Labour Court in the case of Aronmar Plant Limited v. Arkadiusz Brzezinski [TED 2417] cited a previous determination of that court in the case of Galway & Roscommon ETB v. Josephine Kenny [UDD1624] where it held as follows:

“The Court is satisfied that the legal principle ignorantia juris non excusat (“ignorance of the law excuses not”) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit.”

The Complainant’s evidence that her health was such that she was not in a position to issue the complaints to the WRC simply does not tally with the facts as presented when it is taken into consideration that she filed a number of complaints in the relevant time period.   I find I am unable to reconcile the Complainant’s submission in this regard with the facts as presented.   

While the reasons relied upon by the Complainant may explain the delay, I am unable to find they excuse the delay.  The Complainant has not met the standard of reasonable cause set out in the well-established test in the Cementation case of which I am mindful.  I am satisfied that nothing has been advanced by the Complainant that both explains and excuses the delay. 

Applying Cementation, I find the reason put forward by the Complainant does not explain or excuse the delay; it is not a reasonable explanation; and it does not persuade me to grant an extension of time.

Accordingly, I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time.  

In light of the foregoing, I find the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a claim to the WRC under the Workplace Relations Act, 2015.  I find I have no jurisdiction to determine the substantive case under the specific complaint references CA-00064219-001 and CA-00064366-001. 

I find I have no jurisdiction to determine the substantive matter as the aforesaid complaints are out of time. 

CA-00064249-001

This is a complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001 (“the 2001 Act”).  I note the alleged contravention to which the complaint relates occurred in January 2023 when working hours of all staff were reduced and when the Complainant claims she was treated differently to full time employees as she worked 20 minutes extra per week on a pro-rata calculation until her employment ended on 31 January 2024.     

I note the Complainant alleges the Respondent did not reduce her working hours from 1 January 2023 with the same proportion used to reduce the working hours of full-time employees.  The Complainant alleges that the normal working hours for full time staff up to end December 2022 were 37.5 hours per week from 9am to 5.30pm Monday – Friday with 1-hour unpaid lunch break each day.  The Complainant argues that the working time of a full-time employee reduced by 5.33% from 1 January 2023 from 37.5 hours to 35.5 hours per week. 

In order to gain a proper understanding of this complaint, I have focused on a Friday in terms of the working time of full-time employees in order to ascertain the percentage by which their working time was reduced as the wellbeing initiative which was the genesis of said reduction in hours had its focus on a shorter working day on a Friday. 

All remaining days of the week remained the same for full-time employees namely 9am to 5.30 Monday – Thursday with an hour unpaid lunch break each day.  There was no evidence presented to me that would suggest otherwise. 

Heretofore on a Friday full time staff worked 9am – 5.30 with an hour unpaid lunch break.  That is 7.5 hours paid working time.  Under the new regime a Friday is now 9am to 3.30 with half an hour unpaid lunch break.  That is 6 hours paid working time which equals 1.5 hours less per week for full time staff.  1.5 is 4% of 37.5.   Accordingly, the full-time staff are required to work 4% less each week. 

I note the Complainant emailed the Respondent as follows on 9 January 2023: 

“Further to the new team structure and employee benefits introduced I would like to make the following proposals for your consideration:

1.      The reduced working week for me results in 24 working hours per week on a pro-rata basis.  Therefore, I propose my contract be changed to 4 working days doing 6 hours per day.”

I note this proposal from the Complainant was agreed to by the Respondent and the Complainant commenced a four-day week from the following Monday. 

The Complainant submits her working hours were reduced by 4% from 25 to 24 hours per week.  I note the hours of full-time staff were also reduced by 4%.  The paid working time of full-time staff is 7.5 x 4 (Monday – Thursday) plus 6 hours paid working time on a Friday = 36 hours.  That is a reduction of 1.5 hours which is 4%.    

I am unable to conclude the Respondent has contravened the provisions of the 2001 Act as alleged by the Complainant for the reasons set out above.   I am satisfied the evidence before me does not supported the alleged contravention.    Therefore, I find this complaint as presented to be not well-founded. 

CA-00064249-002

For the reasons set out above under CA-00064249-001 I am unable to find there has been an unlawful deduction as alleged by the Complainant under the 1991 Act.   Therefore, I find this complaint as presented to be not well-founded. 

CA-00064219-001 pursuant to section 6 of the Payment of Wages Act, 1991

For the reasons set out above I find I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I decide that the complaint made pursuant to section 6 of the Payment of Wages Act, 1991 is not well-founded. 

CA-00064249-001 pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001

For the reasons set out above, I decide this complaint is not well-founded. 

CA-00064249-002 pursuant to section 6 of thePayment of Wages Act, 1991

For the reasons set out above, I decide this complaint as presented is not well-founded. 

CA-00064366-001 pursuant to section 77 of the Employment Equality Act, 1998

For the reasons set out above I find I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I decide that the complaint made pursuant to section 77 of the Employment Equality Act, 1998 is not well-founded.

Time limits; reasonable cause; pro-rata reduction in hours;