Complainant

Respondent

Anonymised Parties

A Spa Therapist

A Hotel & Spa

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-00068929-003

03/03/2025

The Complainant referred his claim to the Director General of the WRC on 3 March 2025 pursuant to the Payment of Wages Act, 1991.

The Respondent rejects the claim.

The Respondent raised a preliminary matter of an incorrect respondent being named in the Complainant’s WRC complaint referral form. It was asserted that the Complainant was employed by named employer (A Hotel & Spa) and not by Company A as in the complaint form. It was submitted that the Complainant has no entitlement to relief as against the named respondent as it is not a party to the proceedings.

At the adjudication hearing, the Respondent consented to the amendment of the respondent’s name and this decision reflects the correct name of the Respondent.

The Complainant alleges that he was required to work a “trial” day on 10 August 2024. He was promised that he would be paid for the hours he worked. However, he did not receive the payment.

At the adjudication hearing, in response to the Respondent’s submission regarding the applicable time limits, the Complainant submitted that he thought that he did not need an extension of time as he understood that the claim under the Payment of Wages Act was included in his initial claim of 28 January 2025. The Complainant also submitted that he believed that the time limit was six months from the date of cessation of employment.

Mr McMahon BL, on behalf of the Respondent, submits that the complaint regarding pay was received by the WRC outside the six-month period provided for under section 41 of the Workplace Relations Act 2015.

In the event that the Complainant applies under to have the time extended by a further six months as per section 41(8) of the Workplace Relations Act, 2015, the Complainant must show that there is a reason to extend time and that the delay is “due to a reasonable cause”.

It is submitted that the power to extend the time limit was fully considered by the Labour Court in Cementation Skanska v Carroll DWT 0338. The decision in Skanska draws on the High Court decision of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30.

The Labour Court considered the applicability of Skanska and O’Donnell in Kinsella v Friend DWT 209, and summarised that:

“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 Respondent’s submits that the Complainant has submitted his claim outside of the six months allowed and it is, therefore, statute barred. It is submitted that the Complainant has not forwarded any reasonable explanation for his delay in making the claim.

The Applicable Law

Section 5 of the Payment of Wages Act 1991 provides in part as follows:

Regulation of certain deductions made and payments received by employers.

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

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

(b) the deduction (or payment) 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 his prior consent in writing to it.

Section 5(6) of the Payment of Wages Act, 1991 address the circumstances in which wages which are properly payable are not paid:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Time limits

The Complainant alleges that the Respondent did not pay him for work performed on 10 August 2024.

Section 41 of the Workplace Relations Act, 2015 as amended prescribes the applicable time limits 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.

The Complainant asserted that he believed that his claim pursuant to the Act was referred to the Director General together with his dispute pursuant to the Industrial Relations Act, 1969 on 28 January 2025. I note that on 28 January 2025, the Complainant furnished a WRC complaint referral form where, by marking the relevant box, under the heading “My Complaint Falls Under: Unfair Dismissal” he indicated that his claim was “I was unfairly dismissed and I do not have at least 12 months service (Industrial Relations Acts).  There was nothing in the form to suggest that the Complainant had a claim under the Payment of Wages Act, 1991 or, indeed, in relation to any of the pieces of legislation listed under the heading “My Complaint Falls Under: Pay”.

On 27 February 2025, the Complainant emailed the WRC acknowledging receipt of “the supplementary complaint form”. He indicated that he would “drop it in the post tomorrow so you’ll have it Wednesday or Thursday.”

On 3 March 2025, the WRC received correspondence from the Complainant in which he thanked “for sending the form for an additional complaint, concerning unpaid labour for probation days”. The Complainant attached the part of the WRC complaint referral form where under the heading “My Complaint Falls Under: Pay”, he indicated, by ticking the relevant box, that his complaint was “My employer has not paid me or has paid me less than the amount due to me (Payment of Wages Act, 1991). The Complainant further added that he was owed €119 that was due to him on 10 August 2024.

Having carefully considered the matter, I find that the Complainant’s claim pursuant to the Payment of Wages Act, 1991 was referred to the Director General of the WRC on 3 March 2025.

The Complainant lodged his complaint to the Workplace Relations Commission on 3 March 2025. Accordingly, my jurisdiction, having regard to the time limits set out at section 41(6) of the Workplace Relations Act 2015, is confined to assessing alleged contraventions of the Act that occurred in the period from 4 September 2024 to 3 March 2025. The Complainant’s claim regarding the non-payment of wages on 10 August 2024 was, therefore, referred to the Director General outside the time limit prescribed by section 41(6) of the Act.

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 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay.

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the Act to the Director General of the WRC. The general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The established test for deciding if an extension of time should be granted for ‘reasonable cause’ is set out in the Labour Court determination in the case of Cementation Skanska (Formerly Kvaerner Cementation) Limited v Carroll DWT0338 and is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here 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.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

In Cementation Skanska, the Court further held that:

‘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.’

The Complainant, in addition to the assertion that he thought that his claim was referred on 28 January 2025, submitted that he understood that the time limit runs from the date of cessation of employment. This in no way explains the delay and does not afford a justifiable excuse for the delay.

The Labour Court held in Globe Technical Services and Kristen Miller UDD1824 that ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complaint referral. The Court stated:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to the complaint, cannot provide a justifiable excuse for failure to bring a claim in time”. 

The Labour Court in its determination DWT1244 Avery Weigh-Tronix v Kindsley held that “Ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

Laffoy J. in Minister for Finance v CPSU and Others 2007 18ELR36 found that ignorance of one’s legal rights cannot constitute a reasonable cause for not observing a statutory time limit.

On the basis of the foregoing, I am not satisfied that the failure to refer the claim within the prescribed time limit was due to reasonable cause. Having carefully considered the matter, I find that the Complainant has not shown reasonable cause to empower me to extend the timeframe for the submission of a complaint pursuant to the Act.  Accordingly, I find I do not have jurisdiction to decide the claim under the Payment of Wages Act, 1991.

I declare this complaint to be not well founded.

Time limit