MWD252

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00050788 (CA-00062931-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 18th October 2024 in accordance with Section 27(1) of the National Minimum Wage Act, 2000 and 2015. The Worker cross-appealed the Decision of the Adjudication Officer on the 19th of October 2024.

A Labour Court hearing took place on 9TH May 2025.

The following is the Decision of the Court.

DECISION:

Background to the Appeal

This matter comes before the Court by way of an appeal and cross-appeal from a decision of an Adjudication Officer (ADJ-00050788/CA-00062931-001, dated 10 September 2024) under the National Minimum Wage Act 2000 (‘the Act’). An appeal was received in the Court on behalf of Chicken Castle Limited (‘the Respondent’) on 18 October 2024. Mr Suman Bhurtel (‘the Complainant’) cross-appealed on 19 October 2024. The Court heard the appeal in Cork on 9 May 2025.

Factual Background

The Complainant is a Nepalese national. He worked for the Respondent as a Chef de Partie on foot of an employment permit from 5 October 2020 until July or August 2023. (The exact date of the cessation of the Complainant’s employment is disputed but nothing material turns on it for reasons that will be apparent later in this decision.) The permit indicated that the Complainant would be paid €576.92 per week (€14.79 per hour) for a 39-hour week. He was provided with accommodation by the Respondent at no charge. The Complainant’s duties included preparing pizzas, taking orders, closing tills and completing end-of-the-day banking and cleaning.

The Complainant wrote to the Respondent on 16 February 2024 and requested a statement of his average hourly rate of pay in accordance with section 23 of the Act. The Complainant submits that no statement was provided to him by the Respondent.

The Law

Section 24 of the Act provides:

“24. Disputes about entitlement to minimum hourly rate of pay

(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

and a period of 6 months (or such longer period, not exceeding 12 months, as the adjudication officer may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 34, or

(ii) prosecuted for an offence under section 35.

(3) […]

(4) An inspector shall advise an adjudication officer, on request by the adjudication officer, as to whether the inspector has investigated or is investigating an alleged under-payment the subject of the dispute.”

Timeline

The Complainant’s case is that he had requested a section 23 statement from the Respondent on 16 February 2024 (some six months after his employment had ceased) but received no reply. Having allowed in excess of the four-week period referred to in section 23(4) to pass and having not received a statement from the Respondent in that time period, the Complainant then proceeded to refer his originating complaint to the Workplace Relations Commission on 20 April 2024.

It follows that the cognisable period for the complaint is 21 October 2023 to 20 April 2024. It will be recalled that the Complainant’s employment with the Respondent had ceased on 15 August 2023. The cognisable period post-dates the cessation of the Complainant’s employment in its entirety.

The Complainant seeks an extension of time up to the maximum of six months permissible under the Act. In short, he is seeking to have the cognisable period expanded to cover the following timeframe: 21 April 2023 to 20 April 2024. He submits that he worked on average 70 hours per week in the cognisable period up until the date of the cessation of his employment.

Grounds for Application

The Complainant’s Counsel has advanced the following grounds in support his application to extend time:

• (a) The Complainant was employed at all times on foot of an employment permit and this left him in a vulnerable position vis-à-vis his employment with the Respondent;
• (b) The Complainant was unaware of any redress options available to him under employment rights legislation until he made contact with the Migrant Rights Centre in February 2024 following which his complaints were lodged promptly on 15 February 2024; and
• (c) He is a Nepalese national and thus English is not his first language.

The Law

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

“(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.”

Subsection (8) of section 41 states:

“(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 established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello Costello J. (as he then was) stated 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 O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It clear from the authorities that the test places the onus on the applicant for 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 is on the applicant to establish a causal connection 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 by the Complainant 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 claim that those factors were the actual cause of the delay.  Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. 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 institution of proceedings.

Discussion and Decision

There appears to the Court to be a degree of incompatibility between the different grounds advanced on behalf of the Complainant’s application to extend time for reasonable cause. However, it was submitted that the Complainant had no prior knowledge of the employment law redress options available to him until he consulted with the Migrant Rights Centre in February 2024 (ground (b)). It follows, as a matter of simple logic, that neither ground (a) (his status as worker employed on foot of a work permit) nor ground (c) (his claimed level of proficiency in the English language – in respect of which no evidence was advanced) could constitute reasonable cause for the delay in making his application. Put at their most basic, the facts speak for themselves: on consulting with the Migrant Rights Centre, the Complainant learned of the redress options open to him in respect of the alleged breaches of his employment rights and a section 23 statement was requested of the Respondent very promptly thereafter, followed by a referral of the within complaint under the Act to Workplace Relations Commission within a short number of weeks. However, the cognisable period entirely post-dates the Complainant’s period of employment and there could not, therefore, have been a breach of the Act within that period.

In the Court’s judgment, for the reasons set out above, no explanations ‘which both explain the delay and afford an excuse for the delay’ have been advanced in support of the within application that would permit the Court to extend time.

The Court finds that the within claim is statute-barred. The Respondent’s appeal succeeds. The Complainant’s cross-appeal fails and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
ÁM	______________________
01 August 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.