ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006991:
| Complainant | Respondent |
Anonymised Parties | A Former General Manager | An Educational Charity |
Representatives | None | None |
Complaint:
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-00009045-001 | 12/01/2017 |
Workplace Relations Commission Adjudication Officer: Aideen Collard
Background & Procedure:
This complaint under Section 6 of the Payment of Wages Act 1991 was received by the Workplace Relations Commission (hereinafter ‘WRC’) on 12th January 2017. In accordance with Section 41 of the Workplace Relations Act 2015, the Director General referred this complaint to me for adjudication in circumstances where I had adjudicated upon another complaint between the same Parties based upon identical facts, referred under Section 27 of the Organisation of Working Time Act 1997 on 31st March 2016 and an Adjudication Decision Reference: ADJ-00002558had issued on 29th November 2016. The Director General further delegated her powers to me pursuant to Section 47 of the Workplace Relations Act 2015, which provides for complaints to be dealt with by way of written submissions. There was no objection by the Parties to my dealing with this complaint.
Both complaints relate to the manner in which the Respondent calculated a final payment upon the Complainant’s resignation on 31st December 2015. The Complainant is a founder member of the Respondent Educational Charity and was originally a Director before relinquishing that role in 2010 and taking up a part-time position as a Manager. It was common case that for operational reasons, she had worked a considerable number of overtime hours in excess of her eighteen-hour weekly contract during 2012-13. With the Board’s agreement, she had been taking time off in lieu of this historic overtime prior to her resignation on 31st December 2015. Upon her resignation, the Board agreed to pay her in lieu of any outstanding overtime within her final payment made on 3rd February 2016. The dispute between the Parties giving rise to both complaints relates to the adequacy of this payment and specifically the manner in which the public holiday element was calculated, with the Complainant contending that she had been underpaid in breach of her statutory entitlement, and the Respondent submitting that she had been paid over and above the sum due and owing.
Further to referral by the Director General, I heard the first complaint on 14th October 2016 where no extension of time was sought. Oral evidence, copious documentation and submissions received from both Parties were fully considered in my aforementioned decision of 29th November 2016 dismissing the complaint and concluding: “I am satisfied that the Respondent paid the Complainant above and beyond what she was contractually entitled upon her resignation and any possible shortfall in public holiday pay was more than negated within the ex gratia payment.” The Complainant did not appeal this decision to the Labour Court but referred the second and instant complaint to the WRC some six weeks later on 12th January 2017. It is identical in every respect to the original complaint relying upon the same set of facts, save than it has been brought under Section 6 of the Payment of Wages Act 1991 when the original complaint was brought under Section 27 of the Organisation of Working Time Act 1997. Notwithstanding my finding that the Respondent had paid the Complainant above and beyond her contractual entitlement, the Complaint Form outlines various reasons as to why the complaint should be revisited by the WRC.
By letter dated 15th February 2017, the Board for the Respondent wrote to the WRC objecting to this complaint being reopened and citing what it viewed as conclusive findings from the original decision. It also pointed out that the Respondent is a Charity, the Board acts on a voluntary basis and has already expended considerable time and resources in dealing with exhaustive correspondence from the Complainant regarding her pay and meeting her original complaint including attending at the WRC at a personal expense to the Board members who had all attended. Furthermore, the Complainant had rejected an open offer of a further final goodwill payment made at that hearing.
In circumstances where all the relevant evidence had already been heard and tested, I was satisfied that the instant complaint may appropriately be dealt with by way of written submissions only pursuant to Section 47(1) of the Workplace Relations Act 2015. The Parties were notified accordingly by letter dated 5th March 2017, also allowing 42 days for an objection to this course.
As the instant complaint appeared to be out of time, the WRC also wrote to the Complainant inviting her to make a submission as to why she considered that her failure to present the complaint within the requisite sixmonth statutory time limit was due to reasonable cause for the purposes of a ruling from the Adjudication Officer assigned. In circumstances where I had found that the Complainant had been paid “above and beyond what she was contractually entitled” in respect of the first complaint, I also wrote inviting her to make a submission as to whether the subject-matter of this complaint differs materially from the earlier complaint and if so, in what respect. In the interests of fairness, I also assured her that only her submission would be considered and would be taken at its height. The Complainant submitted extensive written submissions in respect of both of these issues. Being satisfied that the submissions did not give rise to any new material matters requiring a further hearing and there being no objection to this course, it falls to me to decide (1) whether there is reasonable cause for extending time for this complaint, and if finding on this point in favour of the Complainant, (2) whether this complaint raises new factual and/or legal issues requiring further adjudication, and (3) if finding on this point in favour of the Complainant, determining same.
Preliminary Issue – Complainant’s Application for an Extension of Time
The Complainant gave the following reasons in support of her application for an extension of time, contending that the complaint arose on 3rd February 2016, when she received the final payment with an unlawful deduction arising from the Respondent’s miscalculation of public holiday pay:
At the time of referring her original complaint on 31st March 2016 up until the date of the hearing on 14th October 2016, the Complainant had been unaware that the WRC only had jurisdiction to entertain complaints in respect of public holiday entitlements falling within the six month period (extendable to 12 months if reasonable cause is shown) prior to referral of her complaint and therefore could not go back for the full 4.5 year period sought. Further to receiving the decision on 2nd December 2016 confirming the position, the Complainant contacted FLAC and a HR Expert for advice. She stated that she also contacted the WRC helpline and was told that she should have chosen the ‘unlawful deduction from pay’ option under ‘pay’ but was not aware of this at the time.
As the there had been an adjournment of the hearing of the first complaint on 14th July 2016 at the Respondent’s request, the Complainant further contended that she would have been made aware of this issue on the original hearing date and could have submitted a complaint under the correct statutory provision within the 6 month time limit. In the instant Complaint Form she states: “However, the hearing was delayed for another 3 months following a request from the respondents, and by the time I was informed of the position by the adjudicator it was outside the 6 month period.”
The Complainant further relies upon the following from the decision of 29th November 2016 as alerting her to the correct claim: “Arguably, this complaint is therefore one of unlawful deduction from wages and should have been more properly brought under the Payment of Wages Act 1991.”
Findings and Conclusions:
This complaint under Section 6 of the Payment of Wages Act 1991 arose on 3rd February 2016 and was referred to the WRC on 12th January 2017, over eleven months later. Section 41(8) of the Workplace Relations Act provides: “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 well-established test as to what constitutes ‘reasonable cause’ for the purposes of an application for an extension of time is set out in Cementation Skanska -v- A Worker DWT0425 & Department of Finance -v- Impact (2005) ELR 6:
“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.”
I have considered the basis proffered by the Complainant for granting an extension of time which essentially relates to her lack of knowledge as to the correct statutory provision for bringing her complaint. Although as a general rule, ignorance of the law has not been deemed a sufficient reason for extending time, I am cognisant that it has been deemed sufficient in exceptional cases. Each case will turn on its own facts and a complainant who is representing him/herself may be afforded more latitude in this respect. For this reason I am prepared to disregard the period from the expiry of the six month time limit for submitting this complaint on 3rd August 2016 until the date of hearing on 14th October 2016 when the Complainant states that she first became aware of the legal position. Although no reasons have been proffered for the delay between the hearing and the issuing of the decision in relation to the first complaint, I am also prepared to accept that she took the decision of 29th November 2016 as confirmation of the legal position. In this respect, it is noted that she has quoted the decision somewhat out of context by placing reliance upon the sentence: “Arguably, this complaint is therefore one of an unlawful deduction from wages and should have been more properly brought under the Payment of Wages Act 1991.” whilst omitting: “However, for the purposes of giving clarity and finality to the Parties, I deem it appropriate to adjudicate on what pay in lieu of public holidays for the material period within time was properly payable to the Complainant.” Notwithstanding the statute under which the original complaint had been brought, it was my intention to bring clarity and finality to the matter for the Parties and my decision was not appealed.
Turning to the further period of some six weeks from the date of receipt of the original decision on 2nd December 2016 until the date of referral of this complaint to the WRC on 12th January 2017 and even allowing for the Complainant to avail of advice, I find that this delay is not adequately explained. Having determined that the Complainant has not shown reasonable cause to extend time, it is unnecessary to consider any prejudice suffered by the Respondent, whether she has a good arguable case or whether this complaint raises new issues requiring further adjudication.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint under Section 6 of the Payment of Wages Act 1991 in accordance with the relevant provisions. For the aforesaid reasons, I determine that I do not have jurisdiction to entertain this complaint as it has been referred outside of the requisite six month time limit and the Complainant has not shown reasonable cause for extending time. Accordingly this complaint is dismissed.
Dated: 5th December 2017
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: - Application for an Extension of Time - Test for Reasonable Cause - Cementation Skanska -v- A Worker DWT0425 & Department of Finance -v- Impact (2005) ELR 6