ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000327
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00000378-001 | 22/10/2015 |
Date of Adjudication Hearing: 29/01/2016
Workplace Relations Commission Adjudication Officer: Kevin Baneham
1. Procedure:
- On the 22nd October 2015, the complainant made a complaint relating to outstanding wages, unpaid annual leave and pay in lieu of notice arising from her employment with the respondent. The complainant was an academic director of a language school and the respondent was a English language school providing tuition in the English language to students from outside of Ireland.
- The complaint was referred to adjudication on the 29th January 2016. The complainant and her spouse attended. There was no appearance by or on behalf of the respondent. I verified that the respondent was on notice of the complaint and of the time, date and venue of the adjudication. Having been satisfied of this, I proceeded with the adjudication in the absence of the respondent.
- In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
2. Complainant’s Submission and Presentation:
- In the complaint form submitted by the complainant, she states as follows: “On 31st October 2014, [the respondent] was one of the English Language Colleges that closed down overnight without giving any indications. At the time of closing the College owed me for two months salary as well as holiday pay and payment in lieu of notice etc.”
- At the hearing of the adjudication, the complainant said that she worked as academic director for an English language college in Dublin. She commenced employment on the 6th January 2014 and continued until the end of her employment on the 3rd November 2014. Her employment ceased in dramatic fashion where the directors of the respondent closed the business overnight, attracting a great deal of media publicity as English language students who had paid fees could not access their courses.
- The complainant outlined that she was owed two months' salary, i.e. €1,000 for each of the months of September and October 2014. She said that an earlier pay cheque had bounced, which in hindsight was an indication of the financial predicament of the respondent. She said that the respondent had issued her a P45 stating that these monies had been paid to her, even though this was not the case. She had to account for this income in her financial return to Revenue even though she had not received the payments. She said that she was entitled to €800 in unpaid annual leave and €230 in lieu of notice.
- Addressing the issue of the timing of her complaint, the complainant said that the director of the respondent had told her and her colleagues that he would wind up the company and asked them to wait so that they could be paid as creditors. When this did not happen, they instructed an insolvency practitioner who then “went through the motions” of winding up the company but at a late stage, said that he was no longer qualified, as per the Companies Act 2014, to act as liquidator. She sought legal advice and referred this complaint at the earliest opportunity. She said that she also had technical difficulties in downloading and completing the form.
- The respondent did not attend the adjudication and also did not make submissions in response to the complainant’s case.
- The complaint is dated the 22nd October 2015. It relates to pay due to the complainant for September and October 2014, as well as unpaid annual leave and pay in lieu of notice.
3. Respondent’s Submission and Presentation:
4. Findings and reasoning:
- The first issue to address is whether the complaint is within the limitation period provided by the Workplace Relations Act, 2015. Section 41 of the Workplace Relations Act provides that an employee may present a complaint to the Director General of the Workplace Relations Commission in respect of a contravention of Schedule 5 to the Act. Section 41(6) provides that an adjudication officer shall not entertain a complaint after the expiration of six months beginning on the date of contravention to which the complaint relates. This is subject to section 41(8), which allows an adjudication officer consider complaints made out of time, but within 12 months of the contravention and where the complainant can show reasonable cause for the late presentation of the complaint.
- The Labour Court has provided the following test in assessing whether a complainant has shown reasonable cause in the late presentation of a complaint, i.e. in the period of 6 to 12 months after the date of contravention. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” 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. 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.”
- Having considered the facts of this case and the submissions made at the adjudication, I am satisfied that the complainant has shown reasonable cause in the delay in pursuing these matters to the Workplace Relations Commission. The reasonable cause arises from the undertakings made by the respondent as well as by the appointed liquidator. They both explain and excuse the delay. I find, however, that the complainant is unable to pursue her claim for pay for the month of September 2014 as this is outside of the 12-month limitation period permitted under the Workplace Relations Act.
- Having shown reasonable cause, the complainant is entitled to recover compensation for the month of October 2015, an amount of €1,000. She is also entitled to recover €800 due to her in unpaid annual leave. She is further entitled to recover the €230 being one week’s notice as she was employed with the respondent from the 6th January 2014 to the 3rd November 2014, a period of more than 13 weeks but less than two years. The sum of these amounts is €2,030.
- Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
5. Decision:
- I decide that the respondent shall pay to the complainant the total amount of €2,030.
Dated: 7th July 2016