Complainant

Respondent

Parties

Dariush  Gholizadeh

Dale Entertainments Limited

Representatives

  Self-Represented

Colin Quarry (CFO)

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-00066380-001

30/09/2024

The hearing was attended by the Complainant, Dariush Gholizadeh and the Respondent representatives: Colin Quarry, CFO, and Martina Halligan, Ops Manager.

Both parties affirmed to give honest evidence before the Commission

The parties provided a myriad of documentation in support of their positions.

The complaint referred is under the s6 of the Payment of Wages Act, 1991 for the non-payment of €4000 that the Complainant claimed was properly due to him.The Complainant also raised issues outside of the remit of the 1991 Act in terms of minimum wage and discrimination.

Previously, the Complainant had made approaches to Commission to direct the Respondent to release files to him. He was informed by the Commission that he should properly approach the Respondent for the documents before approaching the Commission.

There was an issue related to jurisdiction for the Adjudication and the Adjudicator reserved decision on that matter to hear the full case in an abundance of fair procedures.

The hearing was closed after the Adjudicator was assured by both parties that he had their submissions in full

In summary, the following is the Complainant’s case:

Original Employment

That he was hired to deliver programming courses for a game engine, one elementary and one advanced with the requirement for each student to deliver a functional game for their finals. He was told to exert any efforts to educate and train the students in the fine art of such advanced programming environments.

Assisting Less Able Students

His case is that the Respondent admitted students who did not have the prerequisites and authorised two weekly workshops to aid the students in need which turned out to be all of the students.

The Course Coordinator “disappeared” in December and the Complainant claims he was required by the Respondent to aid the students regardless of requirements, some of these students he found to be lacking. Many of these students were overseas at the time while they all were provided software training services at professional grade.

Delay to Finals

The Complainant sets out that the Course Coordinator had delayed the delivery of the finals and instructed him to aid the students who required different schedules. It is his claim that it was acknowledged that he be paid accordingly.

Internships

It is his case that the Course Coordinator participated in interviews for several internships in the US which were granted to students, and he has discharged considerable time in assisting these students. He has received no remuneration for this additional work. 

Lesser Pay and Prejudicial Treatment

He claims that he had been offered only €6 per hour for his work and that the organisation was prejudiced against him in that he was not paid the same rate as other lecturers. 

Termination

Finally, the Complainant sets out that his role has not been terminated and yet he has received no work for the coming semester.

Intellectual Property

The Complainant additionally complains of a breach of his intellectual property rights.

Witnesses and Testimonial

The Complainant did not call any witnesses and attempted to provide testimonials from students in support of his case.

Redress Required

In all the above the Claimant case is he is owed €4000 in unpaid wages.

He asked that the hearing consider the lesser pay issue and that he has not yet been terminated and he is not receiving any assignments from his employer.

The respondent rejects the claims of the Complainant in full.

Complainant Names

They were unaware of who the Complainant was due to his use of other names in correspondence. They have discovered four different names for the Complainant which added to their confusion.

Student Testimonials

The Respondent refutes the additional documents submitted by the Complainant from students from an accuracy or credibility perspective. The views in this document were not shared by many students who had complained of  difficulties with the Complainant.

Departure of Dr M

The Respondent has concerns at the portrayal of Dr M and his absence from their Organisation. Dr M had left on excellent terms to take up another third level teaching position and the Complainant would not know this as he was no longer working for the Respondent.

Contractual Issues

The Respondent refuted any suggestion of a termination notice. It is the Respondent case that the Complainant was hired for a specific purpose, as is standard for the industry. This involves paying the employee on an invoiced basis for work approved and completed. Further to this the Respondent had not offered or authorised additional work and had, in fact, decided to not offer him any further work.

Any suggestion of further work for the Complainant is refuted entirely by the respondent and it is the Respondent contention that they have written evidence of this from Dr M.

Hourly Rate

The matter of payment at €6 per hour is denied entirely and this is a misunderstanding on the Complainant’s part; confusing the rate of pay with the pay for script work.

The Respondent asserts that their rate is commensurate with the rate of third level institutions.

Student Ability

The matter of students being unable to complete the work is refuted entirely by the Respondent and it is their contention that they have written evidence of this from Dr M.

Invoicing

The Respondent is clear that they have paid the Complainant for all work invoiced and this is evidenced by the invoice paid to date. Some of the work claimed as extra work is part of the work required in terms of the 12 separate gaming OOP applications.

The Respondent rejects any claim for €4000 but does accept that there is a small amount of money outstanding for which the Complainant has not invoiced (circa €300) and will pay this on being invoiced in the correct and  customary fashion.

Termination Claim

The respondent sets out that there is no original contract as the Complainant was an Associate Lecturer, who are traditionally employed on a term by term or module by module basis.

The respondent sets out that the Complainant was invited to teach for the term and to invoice for his work. He was not invited for the subsequent term, and it is the Respondent contention that they have written evidence of this from Dr M.

Internships

The Respondent sets out that it has nothing more than an introductory role in Internships and was clear with any students taking up internships that these internships have nothing to do with the Respondent. Therefore, the Respondent has obligations of payment of any kind to the Complainant and on this matter and it is the Respondent contention that they have written evidence of this from Dr M.

Redress

The Respondent rejects any assertion of the amounts claimed as being owed the Complainant, aside from the small amount that he has not invoiced them for.

Jurisdictional Matters

In order that I may deal with the matter of the substantive claim under the Payment of Wages Act, I am obliged to first consider my jurisdiction under Statute.

Facts of this Complaint

The Complainant claims that the monies owed to him is €4000 and due to him on the 1st day of January 2024. Given the statute sets out that such a claim must be referred within 6 months the cognisable period is the 1st of January 2024 to 30th of July  2024.

The Complainant has filed his complaint with the Commission on the 30th of September 2024 at 15:45 pm.

This leaves the Complainant outside the 6-month limit for filing his complaint, as set out by Statute, by a considerable margin of 2 months.

On the 30th of October 2024, the Complainant acknowledged that he was outside the timeframe for filing his complaint. He has further set out that he was not aware of the timeframe required, that he had hoped the Respondent would act in good faith to his claim.

There is significant law on the matter of extensions to the 6- month statutory time limit set down  by the Oireachtas, most notably the case of Skanska V Carroll DWT0338.  The 2015 Act and the Skanska  case sets out the limits of extension where reasonable cause can be shown and is largely dependent on the circumstances of the delay.

Section 41 (8) of Workplace Relations Act 2015 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:

In Skanskathe Labour Court decided on reasonable cause:

“The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

The case law has demonstrated, ignorance of the law is not an excuse and cannot be so for public policy reasons. The Complainant states that he was not aware of the actual time limit leading to this complaint and chose to rely upon the good faith of the Respondent in resolving the matter.

As is referred to in Minister for Finance v CPSU, PSEU and IMPACT [2006] IEHC  145, lacking knowledge is not a sufficient reason for not filing a claim in time. In any event, filing a claim would not have excluded the possibility of resolving the matter with the Respondent while awaiting a hearing, as is often the case, a hearing date can accelerate the parties desire to reach a resolution.  The Complainant in this case presents as a highly articulate, educated and intelligent person with many professional accomplishments, as he has outlined in his submissions and in oral evidence  and it is not appropriate for him to rely on ignorance, even if such a reliance were to be open to him.

In a more recent case of Fyffes Tropical Ireland Ltd v Lou Osman (UDD 2413) (2024).  In a similar matter of a submission being made one day late. The Complainant Barrister made the case that the Complainant misunderstood the statutory time frame as set out by the Oireachtas. In refusing the appeal, the Labour Court found that misunderstanding of the law does satisfy the test for reasonable cause.

It is clear from the authorities that the test places the onus on the applicant for an extension of time to show reasonable cause for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.   The onus is on the applicant to establish a causal link between the reason proffered for the delay and their failure to present the complaint in time.

It is required of an Adjudicator, that they 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. 

This complaint was filed outside of the six-month time limit. The Complainant did not put forward an argument that could allow me to make a finding of reasonable cause pursuant to S41(8). Therefore, I have no other option but to find that I do not have jurisdiction to hear this complaint.   

For the reasons outlined above I find that the complaint is statute barred, and I have no jurisdiction to decide the matter.

Statute barred, jurisdiction, reasonable cause