Complainant

Respondent

Parties

Sarah  Saha

Emex Software Limited

Complainant

Respondent

Anonymised Parties

Representatives

Paul Gough                                Beauchamps

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-00057971-001

29/07/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

On the 22nd of November 2023 the parties had presented in person at the WRC in Lansdowne Road. At the time, this matter was put back pending the implementation of an agreement that had been seemingly reached between the parties. The Complainant was unrepresented at that time. I was informed that the parties would formally seek to withdraw this case on or before the 29th of March 2024. Regrettably no agreement was finally concluded as between the parties and the matter came back before me for a second time. As the Complainant was unrepresented, it would have been inappropriate for me to have sought a withdrawal of this claim in November of 2023 when a final agreement had not been implemented.

The question of whether or not I had the jurisdiction to proceed to hear this matter came into focus on the second date that his matter came before the WRC. These matters had been raised by the Respondent at the initial hearing back in November of 2023.

The Complainant was not represented and made her own case.  The Complainant had provided a written statement in advance of the hearing and had sourced relevant documentary evidence to make her case. I have had sight of the Contract of Employment, the termination agreement as well as a schedule of the losses put together by the Complainant. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. No objection was raised to any of the materials relied upon by the Complainant in making his case.

The Complainant alleges that unlawful deductions have been made to her wages in contravention of the Payment of Wages Act 1991.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had representation at this hearing.  The Respondent entity was also represented by one of the company Directors. I heard from Mr. Kelly the Company Director.

The Respondent has conceded that it owes monies to the Complainant arising out of the period of employment with them. The Respondent has proposed a plan for the scheduled payments of fixed lump sums over a period of time to discharge the debt owing.

In the meantime, the Respondent has asserted that I do not have jurisdiction to deal with this matter by reason of the fact that more than six months has elapsed between the end of the employment and the issuing of the complaint through the WRC.  The Respondent asserts that there can be no contravention of the Payment of Wages Act where there were no wages payable by the Employer to the Employee in that period of time. It logically follows that where no wages were payable there was no opportunity for the Respondent to deduct same in contravention of the Payment of Wages Act 1991.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the matters herein.

A Contract of Employment dated the 21st of June 2021 appears to govern this employment relationship. I note that the complainant was due to move to Dubai when she commenced her employment in and around August 2021. The Complainant was to be on a basic annual salary of about €165,000.00 with scope for an additional performance related bonus. Nett payments were to be paid on a monthly basis.

Even though the Complainant was being paid and taxed in Dubai the Contract of Employment expresses that the Agreement is governed in accordance with Irish Law and the Irish Courts.

It seems this employment relationship only lasted about sixteen months with the parties parting ways on the 9th of December 2022. In her statement the Complainant has indicated that from the start there were difficulties getting paid and I accept her evidence that at the end of her employment with the Respondent company, the Complainant was owed somewhere in the region of €280,000.00. I understand that this debt built up over the course of the 16 months of employment. It is not clear if all of this sum is attributable to wages, as other monies arising out of the expense of moving to Dubai have also been highlighted in the Contract of Employment. I do accept, however, that a good portion of the debt claimed related to unpaid wages and bonuses.

I understand that in later 2022 and early 2023 the Complainant engaged a Solicitor in Ireland to negotiate a schedule of payments in respect of the monies she says were due and owing. The Employer seemed agreeable to pay and whilst a document described as an End of Employment Agreement was prepared, the terms were never implemented.

For reasons only she can know, the Complainant decided not to pursue these monies through the Court as a Contract debt as her Solicitor had advised. Nor did she expeditiously trigger a complaint with the WRC. Instead, the Complainant appears to have waited some time before issuing a complaint under the Payment of Wages Act 1991 which said complaint issued on the 29th of July 2023.

The date is significant as the 29th of July was seven and a half months after the termination of the employment. As the Respondent herein has pointed out, there are no instances of wages being deducted in this period of time as the employment relationship was finished.  Therefore, per the Respondent, there can be no allegation of an unlawful deduction having been made during the cognizable six-month period which works back from the date of the complaint being lodged.

Any monies purportedly due and owing stem from periods of time well before the six months that I am competent under Statute to consider.

In the circumstances, I have to acquiesce to the proposition that I do not have the requisite jurisdiction to hear this matter.

I appreciate that the Complainant had hoped for a different outcome in circumstances where some colleagues had had some success before the WRC. In this regard, I have taken the opportunity of looking at:

  ADJ-00043363 Aniko  Knopp Emex Software Limited

Which is a decision of my Adjudication colleague Elizabeth Spellman BL. I note that the complainant in that case was seeking to recover wages that had been deducted between September and December of 2022. The complaint form was lodged on the 2nd of December 2022.

Ms Spelman found that she had jurisdiction to deal with those deductions which fell in the six-month period immediately preceding the complaint from issuing out of the WRC.

The pertinent excerpt from that decision reads:

Preliminary Issue – Cognisible Period:

The Law:

Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides:

“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.”

Findings and Conclusion:

The Complainant commenced work on 13 June 2022. Her last day of work was 23 December 2022. She filed her Complaint Form on 2 December 2022. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, I can consider a complaint from 3 June 2022. In this instance, I can consider the complaint from 13 June 2022, which was the Complainant’s start date, until 2 December 2022, when the Complaint Form was submitted.

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

CA-00057971-001   - The case herein is not well founded in circumstances where I do not have the necessary  jurisdiction to consider purported wage deductions outside the cognisable period.