Complainant

Respondent

Parties

Deborah  Ward

The Mater Private Network

Representatives

Adrian Norton IBEC

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-00062604-001

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062604-002

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062604-003

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062604-004

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062604-007

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006

CA-00062604-008

03/04/2024

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00062604-009

03/04/2024

The complainant submitted claims under section 6 of the Payment of Wages Act, 1991, Section 8 of the Unfair Dismissals Act, 1977, section 7 of the Terms of Employment (Information) Act, 1994, section 77 of the Employment Equality Act, 1998, Schedule 2 of the Employment Permits Act, 2006 and Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

The claims were submitted on the 3rd of April 2024.   Accordingly, the cognisable 6-month period for these claims’ dates from 4th of October 2023. The respondent submits that the complainant ended her employment with the Respondent on 24th February 2023.   These claims were lodged with the WRC on 3rd April 2024, over 13 months later.

The Respondent submits that the complainants are out of time as they refer to matters which allegedly occurred more than 12 months prior to the claim being referred to the WRC.

The Respondent submits that the Complainant was employed by the Respondent from 13th May 2005 until 24th February 2023.  The respondent submits that the complainant ended her employment with the Respondent on 24th February 2023 to take up work elsewhere.    The date these claims were lodged with the WRC was 3rd April 2024, over 13 months later.

The alleged contravention of the Transfer of Undertakings regulations took place on 6th March 2023, over 12 months before the claim was made. The alleged unlawful deductions from the complainants pay were allegedly made between April 2022 and February 2023, the last occurrence was over thirteen months before the claim was made. The period of employment for which she alleges she did not receive a contract or notice of changes to her terms and conditions of employment, ended on 24th February 2023, over thirteen months before the claim was made.

The alleged date of discrimination was 27th February 2022, over twenty-five months before the claim was made. The Complainant has failed to provide a date for the alleged act of penalisation, but it would have to have been while she remained in the respondent’s employment and therefore must have happened over thirteen months before the claim was made.

The complainant at the hearing agreed that her employment with the respondent ended on 24th February 2023.    The complainant was advised at the hearing that the claims before the WRC had been submitted on 3rd April 2024.   The complainant advised the hearing that she had submitted earlier complaints and grievances to the respondent themselves and also to her union.  The complainant stated that she had understood that those complaints had been referred to the WRC.   

The AO stated  that the claims before her for hearing  were submitted to the WRC on 3rd April 2024.  The complainant was asked to clarify if these were the only claims submitted by her to the WRC and she confirmed that they were.  The complainant again referred to the fact that she had submitted a grievance to the respondent and to her union and stated that she had several meetings regarding this grievance.  

It was again clarified that the only claims before the WRC for Adjudication were claims submitted by the complainant on 3rd April 2024.

Section 41 (6) and (8) of the Workplace Relations Act, 2015 states 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”.

These provisions are mirrored in Section 8(2) of the Unfair Dismissals Acts, 1977 wherein it states that:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause”.

The Act allows for an initial timeframe of six months within which a complaint must be lodged. It also allows for an extension of a further six months where a person was prevented from doing so due to reasonable cause.

The test for determining if an extension should be granted for reasonable cause was set out by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 38/2003 as follows:

 “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he/she would have initiated the claim in time.”

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“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 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”. 

The complainant in this case agrees that her employment ended on 24th February 2023.   The date these claims were lodged with the WRC was 3rd April 2024, over 13 months later.

The Respondent advised the hearing that the claims were submitted outside of the 6 months’ time period within which an extension of time could be sought and outside of the 12 months allowable for such extension.   The respondent submitted that the WRC does not have jurisdiction to consider matters referred outside of the 12-month period. 

The complainant at the hearing agreed that her employment with the respondent ended on 24th February 2023.    The complainant acknowledged that the within claims had been submitted by her on 3rd April 2024.   The complainant advised the hearing that she had submitted earlier complaints and grievances to the respondent themselves and also to her union.  The complainant stated that she had understood that those complaints had also been referred to the WRC by her union.   

The AO clarified that the claims before her and scheduled for hearing were submitted to the WRC on 3rd April 2024.  The complainant was asked to clarify if these were the only claims submitted by her to the WRC and she confirmed that they were.    The complainant again referred to the fact that she had submitted a grievance to the respondent and to her union and stated that she had several meetings regarding this grievance.     The complainant stated that she had all of the correspondence and documentation dating back to 2022 in relation to her grievance and to meetings held in that regard.

It was again clarified that the claims before the WRC for Adjudication were claims submitted by the complainant on 3rd April 2024.

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

CA-00062604-001

03/04/2024

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.    Accordingly, I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062604-002

03/04/2024

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.    Accordingly, I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062604-003

03/04/2024

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.    Accordingly, I declare this claim to be not well founded

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00062604-004

03/04/2024

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.    Accordingly, I declare this claim to be not well founded

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00062604-007

03/04/2024

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.    Accordingly, I declare this claim to be not well founded

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006

CA-00062604-008

03/04/2024

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.    Accordingly, I declare this claim to be not well founded

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00062604-009

03/04/2024

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.    Accordingly, I declare this claim to be not well founded.