Complainant

Respondent

Parties

Donal  Nolan

Egg VFX

Representatives

Mr. Cilian McGovern, B.L., instructed by  Crushell & Co Solicitors

Mr. Rory Treanor, B.L., instructed by Brady McGreevy Solicitors

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-00062075-001

07/03/2024

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

CA-00062075-002

07/03/2024

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

CA-00062075-003

07/03/2024

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

CA-00062075-004

07/03/2024

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

CA-00062075-005

07/03/2024

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

CA-00062075-006

07/03/2024

The complainant submitted a complaint of an unlawful deduction of €24,375.00 ON  31/08/2023.

He further submits that the respondent has breached his entitlements under multiple sections of the Organization of Working Time Act, 1997.

The complainant commenced employment on 15/2/2022 as a visual effects supervisor with the respondent’s production company which provides editing, sound, and visual effects services. His employment ended on 31/7 /2023.

His gross salary was €117,000  gross per annum.

He submitted his complaints to the WRC on 7/3/2024.

CA-00062075-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The respondent submits that this complaint is statute-barred

Without prejudice to the respondent’s contention that they did not breach the Payment of

Wages Act, 1991, the respondent submits that the authority of Health Service Executive vMcDermott (2013) IEHC 331 compels us to take the date of the contravention as the starting point when considering the admissibility of a complaint under the Act of 1991. The deduction occurred on the 31/7/2023. The complainant submitted his complaints on 7/3/2024. The cognizable period for this complaint is 8/9/23- 7/3/2024.

The complainant’s employment ended on 31/7/2023. The Labour Court in University Hospital Group Limerick v Mr. Cillian O’Sullivan PWD2424, applying Health Service executive v McDermott held that as the complainant had failed to set out a contravention date within the cognizable period, his complaint should be dismissed.

The same situation prevails in the instant case as the complaint was lodged outside of the statutory limit and his complaint should be dismissed.

CA-00062075-002, CA-00062075-003, CA-00062075-004, CA-00062075-005, CA-00062075-006. Complaints submitted under the Organization of Working Time Act,1997

 Without prejudice to the respondent’s contention that they did not breach the Act of 1997, the respondent submits that these complaints submitted under the Organization of Working Time Act, 1997 are out of time.

The complainant submitted his complaints on 7/3/2024 over seven months after the alleged breaches. His employment ended on 31/7/2023 and he was not required to work his notice. His last salary was paid on 31/7/2023. He understood no further payments were due.

He has offered no reasonable cause to permit an extension of time. He has not met the test for an extension of time as set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 which obliges a complaint to present an excuse which both explains and justifies the failure to meet the statutory time limit and permit an extension of time.

The complaints should be dismissed

CA-00062075-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The complainant requests that discretion as provided for in section 41(8) of the Workplace Relations Act, 2015 be exercised in his favour.

The complainant maintains that the deduction occurred on 31/8/2023 when his notice period expired.

The complainant asserts that he meets the threshold set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 in that the complainant can show that there are reasons which both explain the delay and afford an excuse for the delay.

The complaint gave evidence under affirmation.

 The complainant confirmed that he raised the matter of non-payment of wages due to unpaid overtime for hours worked in excess of his weekly contracted 40 hours with the respondent on 31/8/2023, after he had left the employment. He said self-preservation constrained him from submitting this complaint to the WRC either at that point or at a time within the cognisable period. The complainant was very stressed and wanted to put matters behind him.

A family crisis required his attention, and in addition, his parents were ill. He was setting up a new company. In his last few weeks with the respondent, he had to rush out films.

From October – Christmas 2023 he was setting up a fundraising campaign for a cancer charity

Cross examination of complainant.

The complainant confirmed that his priority was the setting up of his new company.

His complaint fell by the wayside. His hours were taken up with family matters at the weekend.

He had moved home to assist with family difficulties.

CA-00062075-002, CA-00062075-003, CA-00062075-004, CA-00062075-005, CA-00062075-006 submitted under the Organization of Working Time Act,1997

The complainant maintains that the respondent perpetrated multiple infringements of the Act of 1997.

He said self-preservation constrained him from submitting these complaints either at that point or at time within the cognisable period.  Family matters and the start of a new business delayed his submission of these complaints.

He asks that section 41 (8) of the Workplace Relations Act, 2015 be exercised in his favour.

CA-00062075-001. Complaint under section 6 of the Payment of Wages Act, 1991

I am obliged to determine if I have jurisdiction to hear these complaints.

The matter of determining a preliminary issue such as statutory time limits in advance of addressing the substantive complaints has been dealt with in several cases.

In Mary Sheehy v. Most Reverend James Moriarty [UD1264/2008] the Tribunal held as follows:

‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the claims were not instituted within the time periods set out in the legislation”.

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA101], the Labour Court issued a preliminary decision.  The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J in B.T.F. v. Director of Public Prosecutions 2 ILRM 367.   In the latter case Hardiman J held as follows

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear".

The same conclusions were reached in Donal Gillespie v. Donegal Meat Processers [UD/20/135 and in Bus Eireann v. SIPTU[PTD8/2004].

The authorities point to the requirement to determine the jurisdictional issue of compliance with the statutory limits in the first instance.

Cognisable period.

Relevant Law.

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

“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) states:

“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 submitted his complaint to the WRC on 7/3/2024.

The cognisable period is 8/9/2023- 7/3/2024 as per section 41(6). No infringements of the Act of 1991 could have occurred in this period as the complainant’s employment had ended 5 weeks before the commencement of the period.

The complainant asks that the section 41(8) of the Act be exercised in his favour to consider separate, undated infringements.

 The complainant claimed that the respondent failed to pay him overtime rates for hours which he worked in excess of his weekly, contracted 40 hours for the entirety of his employment from 1/2/2022- 31/7/2023. He calculates that this deduction amounts to €24,375. The complainant’s complaint form and evidence omitted to specify how many infringements occurred or on what dates within the actual, admissible extended period claimed for- that is from 9/3/2023- 8/9/2023. His last salary was 31/7/2023 and the evidence was that no further payments were due to him.

Upon questioning the complainant was unsure as to the frequency of overtime payments, and, of necessity, the due date for payment of said overtime payments. They had been due at the end of overtime attendant on a specific job/assignment. He completed one such assignment at the end of June 2023.

Whether the deduction occurred on 31/8 /2023, as alleged by the complainant, or on 31/7/2023 as alleged by the respondent, the complainant fails to meet the statutory time limits set out in section 41(6).

In terms of section 41(8) availing the complainant, the matter of extending time where reasonable cause exists has been addressed in many decisions. In Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 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.”

Findings and conclusions on the request to extend time so as to render the contraventions occurring on the 31/7/2023 admissible.

Discretion to extend time to hear the infringements of the Act of 1991 as per section 41(8) of the Act of 2015 must conform to the established tests as set out Skanska and which a complainant must satisfy.

In the instant case, the complainant’s reasons for failure to submit the complaint within the cognisable period – setting up a business, wishing to put the experience behind  him, being diverted and wholly engaged with family issues may explain the delay but these situations do not amount to an impediment of an order to excuse the delay.

I find that the complainant does not meet the threshold outlined in Skanska whereby the statutory timeframe within which he is obliged to refer this complaint under the Act can be expanded for reasonable cause.

Based on the evidence and precedent, I cannot find that I have jurisdiction to hear the complaint.

CA-00062075-002, CA-00062075-003,  CA-00062075-004, CA-00062075-005, CA-00062075-006.Complaints submitted under the Organisation of Working Time Act, 1997

 I am obliged to determine if I have jurisdiction to hear these complaints.

The same legal authorities cited in respect of CA-00062075-001, a complaint under section 6 of the Payment of Wages Act, 1991, apply to the matter of determining a preliminary issue such as statutory time limits in advance of addressing the substantive complaints. The substantive complaints are alleged infringements of sections 11,12,13,14 and 15 of the Act of 1997.

Cognisable period.

Relevant Law.

The complainant lodged his complaint with the WRC on 7/3/2024.

The cognisable period for the purposes of this complaint is 8/9/2023- 7/3/2024 as per section 41(6). No infringements of the Act of 1991 could have occurred in this period as the complainant’s employment had ended 5 weeks before the commencement of the period.

Section 41 (8) states:

“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 asks that the section 41(8) of the Act be exercised in his favour to consider undated infringements of sections 11,12,13,14 and 15 of the Act of 1997, occurring over the course of his employment, a period extending from 1/2/2022 to 31/7/2023. 

Discretion to extend time to hear the infringements of the Act of 1997 as per section 41(8) of the Act of 2015 must conform to the established tests as set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338  and set out , already, in CA-00062075-001, a  complaint under section 6 of the Payment of Wages Act, 1991.

The complainant’s reasons for failure to submit the complaint within the cognisable period – setting up a business, wishing to put the experience behind him, being diverted and wholly engaged with family issues may explain the delay but these situations do not amount to an impediment of an order to excuse the delay.

I find that the complainant does not meet the threshold outlined in Skanska whereby the statutory timeframe within which he is obliged to refer this complaint under the Act can be expanded for reasonable cause.

Based on the evidence and precedent, I cannot find that I have jurisdiction to hear these complaints submitted under the Organisation of Working Time Act, 1997. They are: CA-00062075-002, CA-00062075-003,  CA-00062075-004,  CA-00062075-005, CA-00062075-006,

I must find these complaints to be time- barred.

CA-00062075-001. Complaint under section 6 of the Payment of Wages Act, 1991.

I decide that I do not have jurisdiction to hear this complaint.

CA-00062075-002. Complaints submitted under the Organisation of Working Time Act, 1997.

I decide that I do not have jurisdiction to hear this complaint.

CA-00062075-003. Complaints submitted under the Organisation of Working Time Act, 1997.

I decide that I do not have jurisdiction to hear this complaint.

CA-00062075-004. Complaints submitted under the Organisation of Working Time Act, 1997.

I decide that I do not have jurisdiction to hear this complaint.

CA-00062075-005. Complaints submitted under the Organisation of Working Time Act, 1997.

I decide that I do not have jurisdiction to hear this complaint.

CA-00062075-006. Complaints submitted under the Organisation of Working Time Act, 1997.

I decide that I do not have jurisdiction to hear this complaint.

Non- compliance with statutory time- limits.