ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007641
Management Services Provider
David O'Riordan of Sherwin O'Riordan Solicitors, Darragh O’Doherty, Monica Leech
Kieran Kelly of Fanning and Kelly Solicitors, Tony Fitzpatrick
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 25/09/2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 41 of the Workplace Relations Act, 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.
The Complainant was employed as Managing Director from 1st October 2014 to 30th October 2016. He was paid €55,000 per annum. He had claimed for unpaid wages under the Payment of Wages Act.
1)Payment of Wages Act CA 10287-001
Summary of Complainant’s Case:
The Complainant’s representative advised the hearing that the Payment of Wages complaint was withdrawn. This was confirmed to the Workplace Relations Commission (WRC) by letter dated 21st September 2017. It stated, “Please be advised our client will not be proceeding with the non-payment of wages element of his claim referenced ADJ 7641 / CA 10287 however our client will be proceeding with his unfair dismissal claim. It has come to light that due to an administrative error this element of the claim was not selected in the claim form.It was made abundantly clear to the respondent by our initial letter that an unfair dismissal claim was being advanced and was to be addressed by the respondent”.
The Complainant wished to pursue an unfair dismissal claim.
Summary of Respondent’s Case:
The Respondent noted that the Payment of Wages Act claim had been withdrawn.
Findings and Conclusions:
I note that the Payment of Wages Act claim had been withdrawn by letter dated 21st September 2017.
Section 41 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.
As this claim has been withdrawn I have decided that this matter is now closed.
2) Unfair dismissal claim
Preliminary point – Unfair Dismissal Complaint before the WRC
The Adjudication Officer advised the hearing that there was no complaint for unfair dismissal listed for today’s hearing.
The Complainant’s representative stated that by letter sent to the WRC, dated 21st September 2017 they advised that the Payment of Wages Act complaint was withdrawn but they were proceeding with the unfair dismissals claim. It stated,
“Please be advised our client will not be proceeding with the non-payment of wages element of his claim referenced ADJ 7641 / CA 10287 however our client will be proceeding with his unfair dismissal claim. It has come to light that due to an administrative error this element of the claim was not selected in the claim form.It was made abundantly clear to the respondent by our initial letter that an unfair dismissal claim was being advanced and was to be addressed by the respondent”.
They stated that at all times the Respondent knew that the Complainant was pursuing a claim for unfair dismissal. Therefore, the complaint should be heard.
The Adjudication Officer advised the hearing that the complaint form is not a prescribed form. It could be argued that the earliest time that a notification of a claim for unfair dismissals was received by the WRC was 21st September 2017, the date of the letter referred to above.
Using that analysis therefore, the period that may be investigation is six months leading up to that date i.e. 22nd March 2017 to 21st September 2017 unless the time limit was extended by the Adjudication Officer to 12 months i.e. 22nd September 2016 to 30th October 2016 (the date of termination of employment).
Complainant’s request to extend the time limit
The threshold is now based on reasonable cause, not exceptional circumstances. The excuse does not have to be reasonable, it has to provide a reason. The Respondent was aware that the Complainant was contemplating an unfair dismissal claim. What occurred was an administration error; the box wasn’t ticked. The new all-in-one complaint form is very unwieldly so it was easy to make a mistake. He cited the Cementation Skanska v Carroll DWT0425 case in support. The Respondent company has not been placed in a difficult position. The extension should be granted
Respondent’s reply to the request to extend the time limit.
The Respondent referred to the Adjudication Officer decision ADJ 1568 in support. They stated that the Complainant had legal advice at the time of the redundancy, before the dismissal date. An administrative error may explain the delay but it does not excuse it. The only complaint that was presented to the Commission was that under the Payment of Wages Act, which has now been withdrawn. This situation may be unfortunate but it doesn’t come under reasonable cause.
The extension should not be granted.
Decision on extending the time limit
I note that since the passing of the Workplace Relations Act the threshold to extend the time limit is “reasonable cause” not exceptional circumstances.
I note the Cementation Skanska v Carroll DWT0425 case the Labour Court states, “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…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 the circumstances known to the complainant at the material time”.
I note that the representative stated that this was an administrative error and as such this explained the delay in presenting the complaint within the time limit allowed.
However, the WRC acknowledged the Payment of Wages referral dated 24th March 2017 which makes no reference to an unfair dismissal claim.
I note that the WRC advised both parties of the venue, date and time of this hearing and listed the ‘Specific Complaint Reference’, the ‘Complaint Area’ and the ‘Redress Act’ and it makes no reference to an unfair dismissal claim. Therefore, I find that the Respondent’s representative had ample opportunity to ‘spot an error’ but they didn’t.
I note that the representatives had been on board since the redundancy was mooted. Therefore, they were ‘in situ’ for all that time.
I find that these do not excuse the delay.
I have decided not to extend the time limit therefore as the complaint was presented to the Commission on 21st September 2017 the period that may be investigated is 22nd March 2017 to 21st September 2017. The alleged dismissal took place on 30th October 2016. Therefore, the complaint was presented outside the time limit allowed.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have decided that I have no jurisdiction to deal with this complaint.
Dated: 20 November 2017
Workplace Relations Commission Adjudication Officer: Eugene Hanly