ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00052899

Parties:

Complaint:

Date of Adjudication Hearing:  11/09/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint pursuant to Section 6 of the Payment of Wages Act 1991 was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 26th June 2024.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was heard at Lansdowne House on 11th September 2024.  The Complainant was self-represented and was assisted by a Romanian Interpreter.  The Respondent was represented by Mr Eoin O’Connor BL instructed by Sonia McEntee Solicitors.  A Director of the Company who had subcontracted work to the Respondent was also in attendance.  Submissions were received on behalf of the Respondent and vouching documentation was received on behalf of both Parties.  The evidence was heard under oath/affirmation.  The hearing was held in public and the Parties were made aware that their names would be published within this decision. 

Without prejudice to his position that any monies due and owing had been discharged to the Complainant, the Respondent raised a preliminary objection to jurisdiction, namely that this complaint is out of time including any extension of time that may be granted.  As there was a dispute as to whether and when there had been an acknowledgement of debt, it was necessary to hear all the evidence to determine this issue.  If finding for the Respondent on this issue, that would dispose of this complaint and a decision would issue accordingly.  If finding in favour of the Complainant, the substantive complaint would then be considered.

Preliminary Issue:

Summary of Complainant’s Case:

The Complainant referred this complaint under the Payment of Wages Act 1991 to the WRC on 26th June 2024.  It is common case that he is a self-employed sole trader as confirmed in correspondence from the Revenue Commissioners.  He worked for the Respondent (who undertook building projects for a Company) as a contractor between May and September 2022.  There was no written contract between the Parties.  The Complainant’s son would WhatsApp his hours worked to the Respondent on a weekly basis.  He contended that the Respondent had not paid him for all of the hours he had worked during that period.  As no dates or details had been provided within his complaint form, the WRC wrote to the Complainant on 4th July 2024 requesting the date/s he claimed that he should have received payment, the type of payment and the monetary value of same.  By email dated 7th July 2024, his son-in-law provided a list of unpaid hours claimed within seven weekly periods between 25th July 2022 and 21st September 2022.  The Respondent had provided bank statements confirming that payments for those hours had been discharged at the time.  At the hearing, the Complainant contended that his son-in-law had submitted the incorrect details and sought to substitute his claim with different unpaid hours worked.  These were contained on five sheets entitled ‘Time & Materials Record’ which he said he had recently compiled for the purposes of this hearing from records he had retained at the time.  These sheets ranged between 30th May 2022 and 20th September 2022.  He also submitted an email received from the Respondent on 16th July 2024 in response to a call he had made to him demanding payment of outstanding monies.  It stated that the Respondent had paid the Complainant everything that he was due.  The Respondent had also sent the Complainant an incorrect list of payments made to him based upon historic records.  It was clarified via bank statements for both Parties that a total sum of €13,179.40 net of 20% Relevant Contracts Tax (RCT) had been paid by the Respondent to the Complainant during the period in question.  The Complainant maintained that the Respondent still owed him the sum of €5,172.72 gross based upon his substituted claim at the hearing.

In relation to the submission that this complaint was out of time, the Complainant contended that he had rung the Respondent “before the New Year in 2022” seeking payment of outstanding monies.  The Respondent had said: “Don’t worry I’m going to pay you the money”.  He had also told him that he was suing the Company for monies due to him in order to discharge monies due to the Complainant and this could take two years.  Accordingly, he let almost two years pass before referring this complaint to the WRC.  Under cross-examination, the Complainant accepted that he had not sent any emails or messages seeking outstanding payment.  It was also put to him that he had been threatening towards the Respondent.

Summary of Respondent’s Case:

It was not in issue that as a sub-contractor of the Respondent, the Complainant fell within the wide definition of an ‘employee’ under the Payment of Wages Act 1991.  However, it was submitted that the WRC did not have jurisdiction to hear this complaint as it had been referred outside of the 6-month time limit provided by Section 41(6) of the Workplace Relations Act 2015 and given that an extension of time may only be granted up to a maximum of 12 months under Section 41(8) of the Act, it was statute-barred. 

The Respondent gave evidence under oath confirming that the Complainant had been paid for all the hours he had worked for him as claimed at the time.  He referred to their WhatsApp thread showing the time-sheets submitted.  It was noted that some of ‘Time & Materials Records’ submitted at the hearing mirrored the time-sheets.  Although the Respondent was owed monies from the Company, he had obtained a loan to cover outgoings including all monies due to the Complainant.  He contended that until this complaint was referred on 26th June 2024, the Complainant had not made any requests for any outstanding monies.  He denied ever having a phone call with the Complainant wherein he acknowledged monies due to him.

The Director of the Company gave evidence supported with WhatsApp messages confirming that the Complainant had ceased working on their sites in early September 2022 following his removal for sub-standard work.  Thus, even if this complaint was within time, any claim for work undertaken in September 2022 was contested.  There had been no legal proceedings between the Respondent and the Company.

Findings and Conclusions:

The Respondent submits that as this complaint had been referred outside of the statutory 6-month time limit provided by Section 41(6) of the Workplace Relations Act 2015 and given that an extension of time may only be granted up to 12 months under Section 41(8) of the Act, it is absolutely statute-barred.  The Complainant contends that there had been an acknowledgement of the monies due and owing in late 2022.

The time limit for referral of a complaint under the Payment of Wages Act 1991 is governed by Section 41 of the Workplace Relations Act 2015 and entails a 6-month time limit from the date of contravention extendable up to 12 months if reasonable cause is shown (see Cementation Skanska -v-Carroll DWT 0425 for application of this test).  Specifically, Section 41(6) of the Workplace Relations Act 2015 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.  Section 41(8) further provides: “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.” 

A contravention under Section 5 of the Payment of Wages Act 1991 arises from an unauthorised deduction from wages as follows: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.”  In the instant case, the Complainant contends that the Respondent had verbally acknowledged that monies were due to him sometime in late 2022.  I find this assertion to be vague and unreliable given the absence of any communications via WhatsApp to the effect that there were outstanding monies, the conflicting claims for payment and fact that the sums now being claimed mirror claims paid at the time.  Even if this alleged phone call with the Respondent in late 2022 constituted an acknowledgment of debt, this complaint was referred to the WRC on 26th June 2024, some 18 months later and outside of the maximum 12 months including any permissible extension of time.  Accordingly, I do not have jurisdiction to either extend time and/or investigate same.  It follows that it is not open to me to resolve the conflict as to whether any monies were due and owing to the Complainant.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint.  I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, it is statute-barred and accordingly, I do not have jurisdiction to investigate this complaint. 

Dated: 24th September, 2024  

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Time limit for non-payment of wages complaint - Section 5 of the Payment of Wages Act 1991