Complainant

Respondent

Parties

Dragomir  Mollov

Key Waste Management Limited

Representatives

Self and Brother

Anna Rosa Raso ESA Consultants

Act

Complaint Reference No.

Date of Receipt

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

CA-00064762-001

14/07/2024

The Complainant stated the following in his complaint form:

“ I do not received overtime rate in terms of my contract off employment, and if I am working during weekends.”

He works as truck driver with the Respondent and stated that he never received his contract of employment and information about “his terms and conditions.

He alleges that was looking for his contract for some time and in his submission stated the following:

“I am attaching my contract, which I received only at the beginning of March this year (the contract was signed in 2018) and then I found out that there is a clause for overtime in it, which I have never been paid. I went to talk to the company about this and the response I got was that they don't like this contract and it needs to be changed.”

It is the Respondent’s position that the complaint is without merit as the Complainant was never entitled to overtime pay and no deduction of wages occurred. The Respondent acknowledges that the Complainant was employed by the Respondent as a Skip Driver and later promoted to Driver Supervisor in 2019. At no point in the course of his employment was the Complainant entitled to overtime pay, nor is there any history or evidence to suggest that overtime payments were made to the Complainant or other employees in a similar role.

The Company stated that the clause was a mistake.

The Complainant now wishes to rely on the following overtime clause in his contract:

You may be required to work overtime depending on the requirements of your work and at the discretion of management. Where possible you will be notified in advance. If you are required to work overtime, it shall be paid at 1.5 for hours worked after 5pm and on Saturdays.

The contract is signed by the employee and by the then HR Manager and is dated the 8th of May 2018.

A second day of hearing was scheduled as the Complainant was relying on misrepresentation to backdate the claim and the Respondent was requested to detail all hours worked by the Complainant. That request was fulfilled. The Company also confirmed in a sworn affidavit that no other employee received overtime premium payments.

Dear Ms Raso,

At the first day of hearing the Complainant stated that he was not paid overtime as per his contract that he only recently received recently. He alleges that this amounts to misrepresentation as he was led to believe that he was not entitled to overtime. The Company stated that the Complainant accepted that his signature is on the contract which was signed in 2018 so he must have known that the overtime was in his contract and that means it is strictly bound to the 6 months statutory limit.

The Complainant stated that he never received a copy of his contract despite asking for it on many occasions and only when he emailed did he receive a copy that in turn led to this complaint.

As part of the investigation the Employer is asked to provide the hours worked by week since the Complainant commenced his employment. It is also asked to provide evidence that the Complainant did in fact received a copy of his contract on or about when he commenced employment. It has been requested that the information is provided within 4 weeks.

This is without prejudice to any finding and the position of the Company that the term in the contract relating to overtime was a mistake.

Yours sincerely,

A second day of hearing followed, and the Respondent stated that the term being relied upon by the Complainant is a mistake.

The clause is clear and unambiguous, and the Employer is contractually bound to apply the term since May 2018 and pay the appropriate level of back pay.

The Respondent asserts that the overtime clause in the Complainant’s contract of employment was included in error. The Respondent Company has never had a practice of paying overtime to Skip Drivers and this was the case throughout the Complainant’s employment.

 The Respondent relies on the following points in support of its position:

 a. The Respondent has never paid overtime to Skip Drivers or Driver Supervisors. The increased rate of pay when the Complainant was promoted to Driver Supervisor reflects the totality of his remuneration, including for work that may occur beyond regular hours.

 b. There is no record of any Skip Driver or Driver Supervisor receiving overtime. Furthermore, the Complainant himself has no history of receiving such payments, supporting the Respondent’s position that no entitlements exists.

c. The inclusion of the overtime clause in the Complainant’s contract of employment was an error. The Respondent maintains that this was an error, and that the Complainant was never entitled to overtime pay.

Furthermore, the Complainant never raised this issue in 2018 or 2019 while he performed Skipper Driver duties.

The contract term is clear and unambiguous. It is a term that in fact is found in many employment contracts where overtime is paid at 1.5 times after normal or rostered hours are worked and also in many employments overtime is paid on a Saturday where the normal working week is Monday to Friday.

What is very unique about this claim is the fact that it is made so late after the parties signed an agreement in May 2018 and the claim lodged with the Commission on the 14th of July 2024, about 6 years after the term was agreed.

The Complainant signed the contract as did the Employer’s representative, the HR Manager at that time. The employee continued to work without being paid a premium for overtime.

This claim is brought under the Payment of Wages Act 1991 and the obligation is on the employee to quantify the loss and detail the period that the loss relates to. This body has no inherent or statutory power to set aside a term or rectify a term. [As this is also a contractual dispute it would be open to the Complainant to bring a breach of contract claim based on the 6-year statutory time frame to do so from the time of the breach.  However, this body does not have jurisdiction to hear such a breach of contract claim.]  As this body cannot hear a breach of contract claim, neither can it rectify a contract term for mistake. The legal consequence of that finding means the contract term exists and is current. It means the employee can rely on that term for payment of an overtime premium for hours worked as specified in the contract.

Hogan J. in HSE v John McDermott [2014] addressed the meaning of section 6(4) of the Payment of Wages Act relating to the time to present a claim as amended by section 41(6) of the Workplace Relations Act 2015:

(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 construction of s. 6(4) of the 1991 Act

12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, *within the period of 6 months beginning on the date of the contravention to which the complaint relates*. The first thing to note is that no special meaning has been ascribed to the word *contravention* by the 1991 Act, so that it must be given its ordinary, natural meaning.

13. We may next observe that the actual language of the sub-section is clear, because it is the words *contravention to which the complaint relates* which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a *contravention* of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate *contraventions* of the 1991 Act during that period.

14. Yet the relevant statutory language takes us somewhat further, because the key question is the *date of the contravention to which the complaint relates.* In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention *to which the complaint relates.* As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.

15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning *on the date of the contravention to which the complaint relates*, the complaint will nonetheless be in time.

16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were 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.

17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way

I note that in Regan Employment Law (Bloomsbury 2017) at paragraph 28.25:

In Alert One Security Ltd v Khan, the Labour Court extended time in circumstances where the complainant was both ignorant of how to process a complaint and was relying on the assurances given to him by the employer that he was either receiving his legal entitlements or that those entitlements would be met. The Court regarded it as ‘well settled’ that a material misrepresentation which caused or contributed to a delay in presenting a complaint could constitute ‘reasonable cause’ which both explained the delay and provided a justifiable excuse for same.

However, such an extension of time refers to the statutory time frame of 6 months to lodge a claim and for reasonable cause up to 12 months.

The employee is asked by the Commission to complete his form as no loss or period of loss is specified when he first lodged his complaint form on the 14th of July 2024. On the 24th of July 2024 he writes back to the Commission and states:

Dragomir Mollov Sent: 24 July 2024 18:23 To: WRC Submissions Subject: Re: CA-00064762 - Complaint Acknowledgement letter to Complainant-23-07-24 (105440)

Here is example for the last 4 years by 2 payslips, all the time is paying by normal rate, never ever had any overtime rate paid. Some of the payslips is included Saturday working time.

There are clauses in certain employment rights statutes that provide for misrepresentation and how it may stall time to make a complaint. Such statutory remedies allow time to be stalled at the date of the misrepresentation. There is no such clause in the Payment of Wages Act. In contrast the Employment Equality Act at section 77(6) it states:

6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice

The Complainant cannot rely on misrepresentation to stop time running and is fixed with the statutory time period of 6 months to make his claim, as no misrepresentation provision exists in the Payment of Wages Act 1991 and/or the Workplace Relations Act 2015 with regard to this complaint.

The Employer stated that the term in the contract is an error.

While I have determined that the contract clause relating to Overtime can be relied upon by the Complainant, because he has framed the claim to cover a period of many years, as framed that claim is out of time. However, if he had framed his claim correctly and limiting it to a 6-month period that was in time, the claim could be heard and where payments were not paid according to that term such breaches would amount to unlawful deductions for the purpose of the Act.

I find that the complaint is not well founded.

While I have determined that the contract clause relating to Overtime can be relied upon by the Complainant, because he has framed the claim to cover a period of many years, as framed that claim is out of time. However, if he had framed his claim correctly and limiting it to a 6-month period that was in time, the claim could be heard and where payments were not paid according to that overtime term, such breaches would amount to unlawful deductions for the purpose of the Act.

Overtime clause- Misrepresentation