Complainant

Respondent

Parties

John  Whelan

Kildare County Council

Representatives

Brendan O’Connor 

Keith Irvine, Local Government Management Agency (LGMA)

Act

Complaint Reference No.

Date of Receipt

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

CA-00064497-001

28/06/2024

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

CA-00064497-002

28/06/2024

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

CA-00064497-003

28/06/2024

Mr Whelan is a Water Caretaker and has been working for the respondent since August 1999. In October/November 2023, he became aware that he was not being paid an availability allowance as per his contract of employment. His complaint is that he was not notified of a change to his terms of employment in September 2005. He also claims that he is due a payment for this allowance retrospectively from 2005.

The respondent denies the claims.

Summary of Mr Whelan’s Evidence

The complainant gave testimony that he discovered the allowance was being paid to colleagues in October 2023. He then checked his contract and payslips and obtained advice. He wrote to the respondent requesting them to review matters as he felt he was entitled to the allowance as per his original contract.

On 16th November 2023, he wrote to the HR Manager. He received a response on 22nd January 2024 stating that he was not entitled to the allowance and was copied correspondence from back in 2005.

On 26th February 2024, he wrote again stating that he did not agree with the changes to his contract back in 2005 and he would be taking the matter up with the WRC. He received a response from the Human Resources Department on 15th March 2024, with attached correspondence and reference to a Labour Court decision in August 2005.

He said he did not review the Labour Court decision until recently when he received a copy of the LGMA submission to the WRC.

He was cross-examined by the respondent representative on why he did not raise an issue back in 2005 when the change occurred. He replied that he did not get the correspondence back then and only discovered there was an issue in October 2023.

He was asked why he referred the complaints to the WRC in September/October 2024, outside of the 6-month time frame to refer a complaint. He replied that he has dyslexia and that it took him time to follow up on the issue.

He was questioned on the most recent correspondence with the Human Resources Department and if he understood the reasons why he was not paid the allowance. It was put to him that this was due to him being paid overtime for week-end work. He replied that the Engineer mentioned back then that he worked 39 hours over 5 days even though there was no change made to his initial contract.

On the time issue, the complainant’s representative clarified that the reason for delay was due to the complainant trying to resolve the issue directly with the respondent.

The respondent representative raised a preliminary issue that the complaints are out of time. The respondent put into evidence an internal memo (6th September,2005) and letter addressed to the complainant (7th September,2005) on the changes made, arising from the Labour Court decision.

On the time issue, the respondent representative submitted that in late 2023 when the complainant claims he only became aware of the issue, he still did not refer the complaint to the WRC until September/October 2024.

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.

Finding on Time Limit

The complaints fall under the above provisions of the 2015 Act. The complaints goes back to 2005 when there was a change to the way the complainant was paid for week-end work. This arose from a Labour Court decision that affected the complainant. As he worked 39 hours from Monday to Friday, he was then entitled to overtime for week-end work. This entailed the removal of the availability allowance.

The complainant gave testimony that he only became aware of this at the end of 2023 when he received a copy of the letter from the respondent of 7th September 2005 notifying him of the changes.

Even if the alleged breaches of the Terms of Employment (Information) Act 1994 and Payment of Wages Act 1991 were known to him in October 2023, the complaint form was still not received by the WRC within the 6-month timeframe.

Although no formal application to excuse the delay due to ‘reasonable cause’ was made, I need to decide on this for completeness as it arose during the hearing. The complainant said he suffers from dyslexia. His representative added that the delay was due to the complainant attempting to resolve the issue directly with the respondent.

The power to extend time for “reasonable cause” 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.”

Notwithstanding that the basis for the complaint arose in 2005, the complainant said he only became aware of the issue in October 2023. The explanation for the delay is dyslexia and attempts to resolve the issue. At this time, the complainant said he was taking advice. He was also corresponding with the respondent. Therefore, he should also have been able to submit a complaint to the WRC from October 2023 onwards. It is common case that attempts to resolve a breach under the Acts does not stop the clock on the 6-month time-limit.

I am satisfied that ‘reasonable cause’ has not been made out and that the complaints are out of time. I decide that I have no jurisdiction to make a decision on the substantive complaints.

Without prejudice to the preliminary time issue, it was necessary to hear some evidence on the substantive case to eliminate whether there was an ongoing breach of the Acts. (An Animal Carer and A Charity, ADJ-00009820)

I am satisfied there is no subsisting or ongoing breach of the Acts that would bring the complaints within time.

CA-00064497-001

I decide that I have no jurisdiction to the hear the complaint.

CA-00064497-002

I decide that I have no jurisdiction to the hear the complaint.

CA-00064497-003

I decide that I have no jurisdiction to the hear the complaint.

Out of Time, Reasonable Cause