Complainant

Respondent

Parties

Svetlana  Usakova

WHW Brothers Focus Limited T/A Colossus Casino

Representatives

Self-represented

Sean He, Director

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00046923-001

01/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00046923-002

01/11/2021

Both the Complainant and the Respondent gave evidence during the hearing by taking an affirmation.

The first matter I must investigate is if I have the jurisdiction to hear this complaint.

The Complainant worked with the Respondent from 27th November 2004 until 24th June 2020. This is the Complainant’s second application to the Workplace Relations Commission in relation to this employment. She had previously applied for her redundancy entitlements in an application submitted on 7 August 2020. A hearing in relation to that complaint was held on 26 August 2021 and a decision issued on 14th September 2021. There were three complaints identified in the previous adjudication. They were:

·         CA-00039064-001 – a complaint seeking adjudication under section 39 of the Redundancy Payments Act, 1967 stating that the Complainant did not receive any redundancy payment.

·         CA-00039064-002 – a complaint seeking adjudication under section 39 of the Redundancy Payments Act, 1967 stating that the Complainant did not receive proof of her employer’s inability to pay redundancy.

·         CA-00039064-003 – a complaint seeking adjudication under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000 stating that the Complainant’s employer did not supply the Minister with a copy of the prescribed information in writing.

The Complainant says that her entitlements for her notice period and public holiday entitlements were not dealt with in that decision and so she submitted another complaint form on 1st November 2021 for those two claims.

The Complainant’s evidence was that she had been seeking her notice period and public holiday entitlement all along. She described this as being missing from the decision dated 14th September 2021 and so she brought this application to get what she was legally entitled to.

She says that her employer never paid her redundancy but that in addition to her redundancy payment she was also entitled to 8 weeks paid notice.

The Complainant also outlined that while she was on Carer’s Leave, she had an entitlement to be paid for bank holidays for the first 13 weeks that she was on this leave. She says that she never received this from her employer.  She says that there were 4 bank holidays within the first 13 weeks of her commencing Carer’s Leave, which she started on 10th October 2019.

The Respondent denies that the Complainant is entitled to the public holidays or notice that she is seeking. He says that he does not accept that she was due payment for bank holidays. He also submitted that it is now four years later, and the law says that the time for this has passed.

The Workplace Relations Act, 2015 (the Act) is the legislation that applies to this dispute. It establishes the jurisdiction of the Workplace Relations Commission (the WRC) to address these matters.

Schedule 5 of the Act lists various other pieces of legislation that can be referred to the WRC for dispute resolution. The Complainant’s complaints, under the Minimum Notice & Terms of Employment Act, 1973 and the Organisation of Working Time Act, 1997, are both contained in Schedule 5. This means that the Act applies to both complaints.

Section 41 of the Act sets out how an Adjudication Officer should inquire into disputes, and it also prescribes timeframes within which complaints can be made. Section 41(6) and section 41(8) state as follows:

(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.

(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 Complainant’s application form to the WRC in relation to the above two complaints was received on 1st November 2021. That means that the alleged contravention must have taken place 6 months before that date. 6 months before the 1st November 2021 is 1st May 2021. As the Complainant’s employment ended on 24th June 2020, I find that I do not have jurisdiction to hear the complaint because it was submitted well outside the time allowed.

The Complainant stated that she had been seeking her entitlement for her notice period and bank holidays all along. If I took this as an application under section 41(8) above, that there was reasonable cause for failure to present the complaint within 6 months, then the most that the timeframe could possibly be extended by is another 6 months which would be 1st November 2020.

This would mean that the alleged contravention must have taken place on or after the 1st November 2020. That is still some months after the contravention that the Complainant alleges and so would also be statute barred, even if I had considered that there was reasonable cause.

I can understand the Complainant’s frustration in this matter. She knows what statutory entitlements were available to her, however the complaints have simply not been submitted within the statutory time frame.

The Complainant also seems to be under the impression that she had submitted complaints in relation to contraventions of the Minimum Notice & Terms of Employment Act, 1973 and the Organisation of Working Time Act, 1997 prior to this occasion. She described them as being missing from the decision dated 14th September 2021 and stated that she had specifically raised them at the previous hearing. It is important to note that I have no jurisdiction to overturn or in any way interfere with the decision of another Adjudication Officer. The appropriate remedy in that instance lies with the Labour Court.

However, in carrying out my statutory duty to inquire (specifically in relation to applicable time periods) there was no evidence before me that these claims had in fact been made in time. When questioned specifically on when she first raised these issues, the Complainant responded that it was in her submissions dated 17th August 2021. I think it is important for the Complainant to understand that, even at that stage, her complaints under the above two headings were out of time.

In the circumstances, I must find that the Complainant did not submit her complaints for adjudication within the time allowed by law and is therefore statute barred from proceeding.  

I find that the complaint is not well founded as the Complainant is statute barred from proceeding with her claims. I therefore do not have jurisdiction to make any award.

Statute barred