FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : THE GROVE AFTER SCHOOL CARE (MANAGEMENT COMPANY) LTD - AND - MICHELE O' SULLIVAN DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No ADJ-00006991.
BACKGROUND:
2. This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 11 April 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
Ms Michelle O’Sullivan (the Complainant/Appellant) was employed by The Grove After School Care (Management Co) Ltd (the Respondent). On 12 January 2017 she initiated a complaint under section 41 of the Workplace Relations Act 2015 in which she alleged that the Respondent made an unlawful deduction from her wages contrary to section 6 of the Payment of Wages Act. The adjudication officer decided that the complaint was presented outside the statutory time limit and declined jurisdiction in the case.
The Complainant is appealing under section 44 of the Workplace Relations Act 2015 (the Act) against that decision.
The adjudication officer delivered her dicsion in the case on 5 December 2017.
The Complainant appealed against that decision to this Court on 16 January 2018.
The case came on for hearing before the Court on 11 April 2018.
The Law
Section 41 of the Workplace Relations Act 2015 states
41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39 , refer the complaint for adjudication by an adjudication officer.
Section 41(6) of the Act states
(6) Subject tosubsection (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.
Section 41(8) of the Act states
(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 insubsection (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.
In Labour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carrollthe test for extending time 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.
- that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should be enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986,. That approach was held to be correct by the High Court inMinister for Finance v CPSU & Ors[2007] 18 ELR 36.
- -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 Factors Relied Upon by the Complainant
In this case the complainant made comprehensive submissions explaining the reason for the delay. She also stated in evidence that the Respondent deducted a sum from her wages on 3 February 2016. She submitted the Complaint to the Workplace Relations Commission on 12 January 2017. She stated that the reason for this delay arises out of the fact that she initially sought to recover the deduction through a related action she brought under the Organisation of Working Time Act. She stated that she initiated those proceedings on 31 March 2016. The decision in that case was delivered by the adjudication officer on 2 December 2016. She stated that it was only on that date that she became aware that she could not recover the alleged unlawful deduction from her pay through the complaint she submitted under the Organisation of Working Time Act. She said that she took advice and over the following weeks and allowing for the Christmas and New Year holiday submitted the instant complaint at the first opportunity on 12 January 2017.
She submits that this establishes the reason for the delay and provides a justifiable excuse for it. She submits that it discloses a causal connection between the reason she has proffered for the delay and her failure to present the complaint in time. Finally, she asks the Court to find, as a matter of probability, that the complaint would have been presented by her within the statutory time limit were it not for the intervention of the factors she has relied upon as constituting reasonable cause for the delay.
The Respondent stated that the Complainant had submitted a number of complaints against it arising out of the termination of her employment. It submitted that it had met those complaints and had been put to considerable expense in defending itself against them. It submits that it is a small community-operated facility that has very little funding and was finding the process of defending itself in successive cases unfair and unreasonable. It asked the Court to find that the Complaint was not submitted in time, that the Complainant chose to prosecute her complaints under another Act and having failed in those proceedings now seeks to bring a further action against it. It submits that this amounts to an abuse of process and should not be facilitated by this Court.
Findings of the Court
The Court finds that the Complainant submitted a number of complaints to the Workplace Relations Commission after her employment with the respondent terminated. It finds that she failed at that time to bring a complaint under the Payment of Wages Act seeking to recover the alleged unlawful deduction from her wages. She says that she was of the view that she could recover these monies through the complaints she made under the Organisation of Working Time Act. She submits that when she became aware that she was in error in this regard she acted with all haste to secure advice and initiate the instant complaint.
In essence, therefore, her explanation for the delay in bringing the complaint outside the statutory six-month time limit is that she was ignorant of the relevant law under which to bring the complaint.
The Court finds no merit in this argument. The Court finds that the Complainant had ample time to take advice in the six months following the termination of her employment to identify the relevant legislation under which she bring the complaint. She failed to do so. Instead she commenced proceedings alleging that the Respondent infringed various sections of the Organisation of Working Time Act 1997. When that process was completed she decided to commence the instant proceedings as she had failed in the case she had brought on this issue.
The Court takes the view that the Complainant chose to bring proceedings for the recovery of the alleged unlawful deduction from her wages and must live with consequences of that election. It finds no merit in the argument that having failed to recover her alleged losses under one Act she can commence proceedings out of time under another act and seek to rely on the failed action as the justification for the delay in commencing these proceedings. That, in the Court's view, would amount to an abuse of process that would leave the Respondent open to successive complaints under different pieces of legislation until a complainant was successful in their claim.
In order for an extension of time to be granted a claimant must demonstrate that they were impeded, prevented or unable to commence proceedings within the 6-month statutory time limit. It is not sufficient to state that they were unaware of the relevant statute and sought to secure redress under another piece of legislation. Such ignorance did not prevent, impede or render the complainant unable to bring proceedings under this Act. Indeed she elected to bring proceedings and chose the legislation under which to do so. She cannot now seek a second chance to bring the same case under a different statute outside of the statutory time limit.
As no other grounds have been put before it for consideration the Court finds that the delay in bringing the complaint was entirely the fault of the Complainant.
For these reasons the Court finds that the application is not well founded, rejects the application for an extension of time and affirms the decision of the Adjudication Officer.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
2 May, 2018______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.