PWD2323

1. Appeal of Adjudication Officer Decision No(s) ADJ-00034203 CA-00045147-001

BACKGROUND:

2. The Worker appealed the Adjudication Officer’s Decision to the Labour Court under Section 7(1) of the Payment of Wages Act, 1991 . The appeal was heard by the Labour Court on 5 October 2023 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Gerard Huban against a Decision of an Adjudication Officer, ADJ-00034203 dated 16 March 2023, made under the Payment of Wages Act, 1991 (the Act) against his former employer Denis Moriarty “The Kerries Ltd”.

Mr Huban referred a complaint to the Workplace Relations Commission on 12 July 2021 in relation to an alleged unlawful deduction €22,638 from his wages in December 2017. The Adjudication Officer found that the complaint fell outside the cognisable period for the complaint and that she did not have jurisdiction to hear the matter.

Mr Huban lodged an appeal to the Labour Court on 25 April 2023. A hearing of the Labour was held in Cork on 5 October 2023. Both parties confirmed that submissions were exchanged in advance of the hearing.

In this Determination the parties are referred to as they were at first instance. Hence, Gerard Huban is referred to as the Complainant and Denis Moriarty “The Kerries Ltd” is referred to as the Respondent.

Preliminary Issue

The Respondent submits that the Complainant lodged his complaint under the Act to the Workplace Relations Commission on 12 July 2012, over three and a half years after his employment ended. As a result, the complaint is out of time and the Labour Court has no jurisdiction to deal with the matter.

Rule 52 of the Labour Court Rules 2022 provides that the Court may, at its discretion, give a preliminary ruling on any aspect of a case where it is satisfied that it has the potential to be determinative of the case.

Submission of the Complainant.

The Complainant’s employment ended in December 2017 and his employer entered into examinership in January 2018. The Complainant understood that he would be paid his outstanding wages, but this did not happen. He submits that he was incorrectly categorised as a creditor by the Examiner who was not informed of his employee status. In July 2019 the Complainant submitted a complaint to the scope section of the Department of Social Protection, who subsequently confirmed his employee status. He then lodged his complaint to the Workplace Relations Commission once a determination was made by the Department of Social Protection confirming his employee status.

The Complainant submits that, having regard to the above, the time limit for lodging his complaint under the Payment of Wages Act to the Workplace Relations Commission should be extended.

Submission of the Respondent

The Complainant submitted his complaint to the Workplace Relations Commission on 12 July 2012, over three and a half years after his employment ended. There is no provision under the Workplace Relations Act to extend time to take account of other statutory investigations. The complaint is out of time and the Labour Court has no jurisdiction to deal with the matter.

Relevant Law

The relevant statutes to the within appeal are the Workplace Relations Act 2015 and the Payment of Wages Act 1991.

Section 41 of the Workplace Relations Act, 2015, sets out provisions in relation to time limits and provides 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.”

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

(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.

• (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.

The Workplace Relations Act 2015 at section 41(6) specifies the time limit that applies for lodging complaints under certain employment rights enactments, including the Payment of Wages Act 1991.

That provisions specifies that a complaint cannot be entertained by an Adjudication Officer, or by the Labour Court on appeal, unless it is presented “after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. In other words, the 2015 Act requires that in order to ground a claim under the Payment of Wages Act a complainant must set out specific contraventions of the Act that occurred in the six-month period before lodging a claim.

That timeframe may be extended by a further period of 6 months if the failure to present the complaint in time was due to reasonable cause.

In this case, the Complainant lodged his complaint to the Workplace Relations Commission on 12 July 2021. Accordingly the relevant period for initial consideration by the Court is confined to the period from 13 January 2021 to 12 July 2021 and the Court must ascertain, in the first instance, what alleged contraventions of the Act occurred within that six-month timeframe.

The Complainant confirmed to the Court that his complaint relates to an unlawful deduction of his wages in December 2017, when his employment with the Respondent terminated. He submits that the Court should extend the time limits for consideration of his complaint back to July 2019 when he submitted a complaint to the scope section of the Department of Social and Family Affairs, as he lodged his complaint to the Workplace Relations Commission once a determination was made by that Department confirming his employee status.

In the circumstances of this case, it is clear that the alleged contravention of the Act occurred in December 2017. As a result, the complaint was submitted outside the time limits specified at section 41(6) and 41 (8) for bringing complaints under the 2015 Act.

The Labour Court is a creature of statute, and its powers and duties are derived solely from statute. The Court cannot assume a jurisdiction which has not been conferred to it by statute and does not a ‘discretion’ to vary the time limits set down in relevant statutes.

It is clear that in this case no specific contravention of the 1991 Act, occurring within the specified time, was identified to the Court. A failure on the part of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim.

As a result, the Court finds that it has no jurisdiction to hear the complaint.

Determination

The complaint is statute barred. The appeal is not allowed.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
DC	______________________
10 October 2023	Deputy Chairman