FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : QFF DISTRIBUTION LTD (REPRESENTED BY MS CLAIRE BRUTON BL INSTRUCTED BY MCGRADY & CO SOLICITORS) - AND - KEITH O' REILLY DIVISION : Chairman: Mr Haugh Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision No: ADJ-00000276.
BACKGROUND:
2. This is an appeal of an Adjudication Officer's Decision No: ADJ-00000276 made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 26 October 2017 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
Background to the Appeal
This is an appeal brought by Mr Keith O’Reilly (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-0000276, dated 16 May 2016) in respect of a complaint that his former employer had failed to make a number of payments to him contrary to the Payment of Wages Act 1991 (‘the 1991 Act’). The Complainant was employed by QFF Distribution Limited (‘the Respondent’) as a Sales Office Assistant until he resigned his employment on 25 September 2015.
The relevant initiating complaint form was received by the Director General of the Workplace Relations Commission on 21 October 2015. Having regard to section 41(6) of the Workplace Relations Act 2015, the cognisable period that applies to the Complainant’s claim is 22 April 2015 to 21 October 2015.
Application to Extend Time
At first instance, the Complainant alleged that the Respondent had committed a series of breaches of the 1991 Act in the period from January 2015 to 22 April 2015 (i.e. prior to the cognisable period) due to the Respondent’s failure to pay him a monthly sales commission which he says was lawfully payable and due to him. The Complainant made an application to the Adjudication Officer to extend time in respect of those earlier alleged unlawful deductions/underpayments. This application was refused and the Adjudication Officer held that the Complainant had failed to demonstrate reasonable cause for his delay in bringing a claim or claims under the Act in respect of the alleged unlawful deductions/underpayments he says occurred in the January to April 2015 period.
The Complainant has renewed his application to extend time as part of his appeal to this Court. The matter, therefore, falls to be considered afresh in the context of ade novohearing of the entire claim. The Complainant submits that the disputed payments were the subject of an ongoing grievance process and that his engagement with that process affords him reasonable cause for delaying in initiating proceedings under the Act.
Section 41(8) of the Workplace Relations Act 2015 Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. 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 DWT0338,Cementation 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.”
The test formulated inCementation Skanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal 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.”
The Complainant in the within appeal, in support of his application for an extension of time to bring his complaint in respect of the alleged unlawful deductions/underpayments that he says occurred in early 2015, is relying on the fact that an internal grievance process was underway in respect of those disputed payments. The Respondent submits that that internal grievance process concluded on 19 March 2015 and that the only option open to the Complainant at that stage was to refer the dispute externally. The Court accepts the Respondent’s submission in this regard. This being the case, the Complainant cannot rely on the internal grievance procedures as a basis for his application to extend time. The Complainant did not bring his complaint until 21 October 2015. Accordingly, the Court finds that the part of the within complaint/appeal which relates to the period prior to 22 April 2015 to have been brought out of time and that no basis to extend the time limit has been made out by the Complainant.
The Substantive Claim that is Within Time
The Complainant is entitled, however, to proceed with that element of his appeal that relates to the alleged non-payment of sales commission properly payable to him during the cognisable period (i.e. between 22 April 2015 and 21 October 2015).
At the hearing of the within appeal, the Respondent conceded this element of the claim and it was agreed between the Parties that total amount of the relevant underpayments is €2,500.00 (gross). On that basis, the Court directs the Respondent to compensate the Complainant in that amount less any statutory deductions on the basis that an award made under the 1991 Act is by way of compensation for unpaid wages or salary.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
3 November 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.