Complainant

Respondent

Anonymised Parties

A Worker

A Company

Representatives

Self-represented

IBEC

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-00065261-001

07/08/2024

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

CA-00065000-004

26/07/2024

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

CA-00065000-002

26/07/2024

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

CA-00065000-003

26/07/2024

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

CA-00065046-001

29/07/2024

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

CA-00065046-002

29/07/2024

The complainant claims that she was unfairly dismissed by the respondent under the Unfair Dismissals Act.

The complainant made two complaints under the Terms of Employment (Information) Act. The first complaint is that she was not given notice of changes to her terms and conditions. The second complaint is that she was required to pay a recruitment fee of €26,000 as a condition of her employment and there was no reference to this payment in her employment contract.

Under the Employment Equality Act, the complainant’s case is that she was discriminated by the respondent on race grounds and that she was harassed.

The complainant made a complaint under the Payment of Wages Act for the recruitment fee of €26,000. As the complaint form also included a separate claim under the Payment of Wages Act for outstanding wages, this complaint was added. The respondent was on notice of the claim and was not prejudiced in any way.

Complaint under Unfair Dismissals Act

The complainant submitted that she was unfairly dismissed on 12th January 2024. She appealed the decision in accordance with the company procedure. The appeal concluded at the end of May and she received the outcome on 12th July 2024. The decision to dismiss was upheld on appeal.

Complaints under Terms of Employment (Information) Act

The complainant claims that changes were made to her terms and conditions on 6th March 2023.

The complainant claims that she paid €26,000 to an agent of the company as a recruitment fee in April 2020 and that this was not included in her employment contract.

Complaints under Employment Equality Act

The complainant outlined several alleged incidents on the WRC complaint form. These incidents occurred from the commencement of her employment up to 12th January 2024 when her employment was terminated. In her supplementary submission, the complainant included correspondence with the appeal officer from the end of January 2024 up to the appeal decision in July 2024 as alleged incidents of discrimination and harassment.

Complaints under Payment of Wages Act

The complainant submitted that she had paid the company a recruitment fee of €26,000 when she commenced employment in 2020. She said that she was owed these monies which she should not have had to pay.

The complainant outlined that she was not offered work leading up to the outcome of her dismissal appeal. She claims she is due pay from her dismissal date of 12th January 2024 up until the appeal outcome on 12th July 2024.

The respondent representative raised a preliminary issue that the complaints were out of time. A supplementary submission was made on the date of dismissal with reference to case law. (Fyffes Tropical Ireland Ltd v Osman, UDD2413 & Action Health Enterprises Ltd v Darcy, ADJ-00014891)

Without prejudice to the preliminary issue, the respondent denies the claims in full.

On the payment of wages complaint, the respondent submitted that there was no obligation to pay wages as per the contract of employment in circumstances where the complainant had been dismissed. The complainant was not required to attend work other than for the appeal hearing dates. It was submitted that the appeal became protracted due to other complaints raised by the complainant during the appeal process.

Preliminary Issue

The Law- Time Limits

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

“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) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six 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 Unfair Dismissals Act also refers to time limits as follows:

(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 Employment Equality Act states-

Section 77(5) of the Employment Equality Act provides:

(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

Section 77(6A) provides:

For the purposes of this section—

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

Reasonable Cause

Although not raised during the hearing, the complainant made a supplementary submission after the hearing seeking an extension of time due to reasonable cause.

The power to extend time for “reasonable cause” provided by subs.(2) was fully considered by the Labour Court in Cementation Skanska v Carroll DWT 38/2003. It was 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 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 she would have initiated the claim in time.”

From the complainant’s supplementary submission, the reasons for delay can be summarised as follows-

·        The respondent failed to provide a clear termination date.

·        Payments were made to the complainant after the dismissal date.

·        The above two reasons caused confusion for the complainant as to when the dismissal occurred.

·        The lengthy appeal process obscured the timeline for termination.

·        The failure to pay wages after dismissal impacted the complainant’s preparation for legal action.

·        These are exceptional circumstances due to the employer’s actions.

Finding on Reasonable Cause

The complainant has submitted several reasons for the delay in submitting her complaints. The facts and circumstances known by the complainant at the material time are relevant. The respondent representative put into evidence the correspondence from the complainant’s legal representative in or around March 2024. One of the issues confirmed to the complainant’s legal representative at that time, was the date of dismissal. Therefore, the complainant, and her representative, at that time were aware of the dismissal date and ought to have known the timeframe to submit a complaint. By any objective standard, the reasons put forward for the delay are not sufficient to have prevented the complainant or her representative from submitting a complaint within the timeframe.

Even though the complainant appealed the dismissal, this does not stop the clock on the time limit. As per Pfizer Pharmaceuticals Ireland v Whelan EDA 24/2019, Beaumont Hospital v Kaunda EDA 30/2019 and SSE Renewables (Ireland) Ltd v Tymon UDD 56/2019, the utilisation of the appeal procedure is not a ‘reasonable cause’.

The receipt of wages after the dismissal date, is not determinative of the dismissal date itself, as time is often required for the respondent to calculate what is owed. This is not a sufficient reason to have prevented the complainant from making complaints within time.

For the reasons outlined, I am satisfied that a case has not been made out on ‘reasonable cause’ to extend the time limit.

CA-00065000-003- Unfair Dismissals Complaint

Preliminary Issue- Date of Dismissal

As per the definition in the Act:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

The respondent representative submitted that the complaint was out of time as the complainant was dismissed on 12th January 2024 and did not submit her complaint until 26th July 2024. The cognisable period is from 27th January 2024 to 26th July 2024 (the date complaint form was received by the WRC).

The respondent representative relies on case law and correspondence with the complainant’s legal representative in March 2024 which confirmed the dismissal date. There was no objection raised by the complainant’s legal representative at that time.

The complainant submitted that the dismissal date was later than 12th January 2024. This was due to wages being paid at later dates and the dismissal appeal caused confusion.

Finding on Date of Dismissal

The letter of dismissal states:

‘It is the company decision to provide you with four week’s pay in lieu of notice which is in keeping with the terms Notice of Termination as specified in your contract of employment. Your last physical working day is 12th January 2024.’

It is well established as per case law that where the employment contract allows for a payment in lieu of notice (which it does on this case) which was accepted by the complainant that the date of dismissal as per the contractual arrangements is 12th January 2024. See Fyffes Tropical Ireland Ltd v Osman, UDD2413 & Action Health Enterprises Ltd v Darcy, ADJ-00014891.

The complainant submitted two complaint forms to the WRC with the date of dismissal on 12th January 2024. As the dismissal date was also not contested by the complainant’s legal representative in March 2024, this indicates that the dismissal date was agreed as per the contractual terms. 

I am not satisfied that payments shortly after the date of dismissal are sufficient grounds to move the dismissal date beyond 12th January 2024.

I am satisfied for the reasons outlined that the date of dismissal was 12th January 2024. This is outside the six-month time limit, and I have already decided that reasonable cause does not exist to extend the time.

I decide I have no jurisdiction to hear the complaint.

CA- 00065046-001- Terms of Employment Act Complaint

The complainant’s submission and evidence outlined that she paid €26,000 as a recruitment fee when she commenced employment in 2020. The respondent representative submitted that the company only recently became aware of this criminal matter and have forwarded all information to the Gardai.

Although this complaint could considered to be a subsisting breach of the Act from 2020 to date, I decide I have no jurisdiction to hear the complaint as it is a criminal matter.

CA-00065000-002- Terms of Employment Act Complaint

The complainant submitted that she was not notified in writing of changes to her terms and conditions of employment in March 2023 when she was moved to another area of the factory. Although this complaint could considered to be a subsisting breach of the Act from 2020 to date, the contract of employment specifically allows for the complainant to be moved to all areas of the factory.

I decide that this complaint is not well founded.

CA-00065046-002- Employment Equality Act Complaints

Preliminary Issue

The respondent representative raised a preliminary issue that the complaints under the Employment Equality Act were out of time.

The complainant was dismissed and was not in the workplace from 12th January 2024 other than attending meetings on her appeal. I have reviewed the correspondence submitted between the complainant and the appeals officer and there are no incidents of discrimination or harassment that occurred over this period.

As there was no evidence of an occurrence of discrimination or harassment during the six-month period, I have no jurisdiction to hear the complaints. I have already decided that reasonable cause does not exist to extend the time.

I decide I have no jurisdiction to hear the complaint.

CA-00065261-001- & CA-00065000-004- Payment of Wages Complaints

The Law

Section 5 (1) of the Payment of Wages Act 1991 provides-

An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(a)   the deduction is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b)   the deduction is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c)    in the case of a deduction, the employee has given prior consent in writing to it.

CA-00065261-001- Payment of Wages Complaint

The complainant submitted that she paid a recruitment fee of €26,000 when she commenced employment with the company. The respondent representative submitted that they recently brought this criminal matter to the attention of the Gardai.

Although this complaint could considered to be a subsisting breach of the Act from 2020 to date, I decide I have no jurisdiction to hear the complaint as it is a criminal matter.

CA-00065000-004- Payment of Wages Complaint

The complainant submitted that she was not paid from the end of January 2024 up to July 2024.

The respondent representative submitted that the appeal was conducted over an extended period as the complainant raised issues herself which contributed to the appeal not being finalised until July 2024. It was submitted that the complainant was not entitled to payment during this period as per the company procedures. It was submitted that she had been dismissed and was paid her notice period.

The first issue is to establish whether wages were properly payable to the complainant over the period. I find that in accordance with company procedures, the complainant was not entitled to be paid over the course of the appeal period. The complainant did not work for the company from 12th January 2024 and therefore wages were not properly payable.

I decide that this complaint is not well founded. 

CA- 00065046-001- Terms of Employment Complaint

I decide I have no jurisdiction to hear the complaint as it is a criminal matter.

CA-00065000-002- Terms of Employment Complaint

I decide that this complaint is not well founded.

CA-00065046-002- Employment Equality Act Complaints

As this complaint is out of time, I have no jurisdiction to hear the complaint.

CA-00065000-003- Unfair Dismissals Complaint

As this complaint is out of time, I have no jurisdiction to hear the complaint.

CA-00065261-001- Payment of Wages Complaint

I decide I have no jurisdiction to hear the complaint as it is a criminal matter.

CA-00065000-004- Payment of Wages Complaint

I decide this complaint is not well founded.

Jurisdiction, Unfair Dismissal,