ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017788
A Provider of Care Services
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 04/07/2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 41 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.
The Complainant started his employment with the Respondent on 12th March 2016. He claims that he did not receive his annual leave entitlements.
An adjudication hearing was scheduled for 15th May 2019. On 10th May 2019 the Respondent contacted the WRC and applied for a postponement of the hearing and the postponement was granted. On 15th May 2019 the WRC wrote to the parties informing of the arrangements for the second hearing to be held on 4th July 2019. At the outset of the adjudication hearing on 4th July 2019, it became apparent that there was no appearance by or on behalf of the Respondent. I verified that a letter notifying the Respondent of the time, date and venue of the adjudication hearing was issued. The Respondent did not engage with the WRC at any stage prior to the second hearing, it did not apply for a postponement and did not indicate any difficulties attending the hearing. I waited some time to accommodate a late arrival. Having taken these steps, I proceeded with the adjudication hearing in the absence of the Respondent.
An additional submission was received from the Complainant on 9th July 2019.
Summary of Complainant’s Case:
The Complainant submits that he started working for the Respondent on 12th March 2016 as a carer and continued to work until 26th January 2018 when he was informed by the General Manager, KS that there was no more work for him.
The Complainant submits that after January 2018, the Respondent offered him employment on several occasions in March, April, May, June and early October 2018. However, he told the Respondent that he would not work for the Respondent until the monies owed was paid to him.
The Complainant submits that for the first 5 or 6 months of work he was quite busy working between 20 and 30 hours each week. After that, he requested that his hours be cut due to other commitments and he generally worked between 4 and 10 hours a week.
The Complainant submits that due to the few hours he worked he did not take any holidays while working for the Respondent.
The Complainant claims that in May 2017 he requested that he be paid his holiday pay entitlements i.e. 8% of all earnings. He was paid €400.07 but it was not explained to him what period the holiday pay covered.
The Complainant claims that in December 2017 he again requested on several occasions his further holiday pay but this was not paid to him to this date.
The Complainant calculated that he is owed the following holiday pay: In 2016 he earned €6,394.00 at 8% = €511.52 in 2017 he earned €3,404.57 at 8% = €272.36 less €400.07 paid in May 2017
The total due to him is €383.81
The Complainant also alleges that the Respondent owes him €198.80 for mileage and travelling expenses some of which dates back to September 2017.
The Complainant submits that he has tried on numerous occasions through email, phone calls and visits to the General Manager KS to have these monies paid by the Respondent but his efforts have been frustrated at every turn.
The Complainant submits that he is 64 years old and has been in the workforce for over 44 years. He feels that this treatment by the Respondent is very degrading and humiliating.
By letter dated 8th October 2018, the Complainant was informed by the WRC that it would appear from the information submitted by the Complainant that his complaint does not fall within the statutory timelines. The Complainant was invited to make a submission in that regard to the WRC.
On 16th October 2018 the Complainant wrote to the WRC outlining the following in regard to the matter of statutory time limits:
· The Complainant was not aware of the 6 months’ time limit on complaints until he received the letter dated the 8th October 2018.
· Even though the Complainant has a computer which he tries to use he is not fully computer literate. He had great difficulty in accessing the WRC website and he was not able to download the WRC Complaint Form which, he claims, was probably due to his inexperience on the computer. He had to contact the WRC office in order to get the Complaint Form and this in part lead to the delay in making the complaint.
· The Complainant was promised by the Respondent on several occasions that the monies owed to him would be paid but it now appears that this may have been a delaying tactic on their part.
· The Complainant’s most recent meeting was with the General Manager, KS, on 21st May 2018 when KS promised him that the matter would be dealt with without delay. If that date is taken as the start time when the monies were owed to the Complainant, then his complaint is still within the statutory timeline.
Post hearing the Complainant wrote to the WRC noting that, after reflecting on the matter, he feels that the date he signed his original complaint should be deemed as the actual date of the complaint and not the date it was received at the WRC.
Summary of Respondent’s Case:
The Respondent did not forward any written submissions in response to this complaint and did not attend the oral hearing.
Findings and Conclusions:
The first matter I must decide is if I have jurisdiction to hear these complaints.
In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.
The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:
“Subject to subsection (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.”
In his WRC Complaint form, the Complainant stated that the date the employment ended was 26th January 2018. At the hearing, the Complainant explained that 26th January 2018 was his last day at work. Following this date, he did not accept any hours offered by the Respondent and he informed the Respondent that he would not do so until the matter of money owed to him is resolved. The Complainant did not indicate his intention to resign. He confirmed that he was offered work in February, March, April, May, June and October 2018. The Complainant stated that he remains “on the books”. The Complainant confirmed that he has never been issued with P45 or any other documentation suggesting that his employment was terminated.
Having considered the evidence of the Complainant in that regard, I find that the Complainant and the Respondent had somewhat flexible arrangement in terms of hours offered to the Complainant and accepted by him. I find that the Complainant remains in employment relationship with the Respondent, albeit he does not accept hours of work offered to him.
The WRC Complaint form was submitted pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint.
I note the Complainant’s assertion that, in his experience the relevant date should be the date he signed the Complaint form and not the date of its receipt by the WRC. The legislation provides very clearly that the complaint is to be “presented to the Director General” and therefore, I find that a completed form is not properly presented to the Director General until it is received by the WRC.
I also note the Complainant’s assertion that he has “no control over how An Post deals with their delivery service or how long his complaint was in a tray in the W.R.C.”. In that regard, the Complainant signed the form on 29th September 2018 (Saturday). Even if the Complainant made arrangements to place his form in a letter box on that day he could not have realistically expected that it would be collected before Monday, and delivered, in the best case scenario the day after. The complaint form was received by the WRC on 2nd October 2018 (Tuesday).
This complaint was presented to the WRC on 2nd October 2018 and therefore the cognisable period that may be investigated is 3rd April 2018 to 2nd October 2018. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2018 to the 2nd October 2018.
The Complainant sought an extension of time in relation to the complaint on the basis that he was not aware of the 6 months’ time limit until he received the letter dated the 8th October 2018; he is not fully computer literate and that he was promised of several occasions by the Respondent that the monies owed to him would be paid to him.
I recognise that the Complainant was not aware of the provisions of the Workplace Relations Act, 2015. However, as the Labour Court found in Globe Technical Services Limited and Kristin Miller (UD/17/177), ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form:
“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”
I find that the further reasons advanced by the Complainant cannot be found to be reasonable cause for the delay and cannot be found as preventing a complaint being made to the WRC.
Having carefully considered all evidence available to me, I find that the Complainant has not shown reasonable cause to empower me to extend the period related to his claims for redress under the Organisation of Working Time Act, 1997.
Section 19 of the Organisation of Working Time Act, 1997 stipulates that:
(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),
b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”
By the Complainant’s own evidence he did not accept any hours after January 2018. Therefore, he would have no entitlement to annual leave accrued in the period from 1st April 2018 to 2nd October 2018.
In respect of the Complainant’s claim that he is owed €198.80 for mileage and travelling expenses I find that it does not fall within the ambit of the Organisation of Working Time Act, 1997. I therefore, have no jurisdiction to hear this claim.
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.
Having carefully considered the evidence before me, I find this complaint to be not well-founded.
Dated: 14TH August 2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Annual leave- mileage