SECTION 7(1), PAYMENT OF WAGES ACT, 1991
(REPRESENTED BY ARTHUR COX)
- AND -
MR DEAGLAN HEALY
Chairman: Ms Jenkinson
Employer Member: Ms Connolly
Worker Member: Ms Treacy
1. Appeal Of Adjudication Officer Decision No. ADJ-00019238
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 16 June 2020 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-
This is an appeal by Ervia (herein after referred to as it was in first instance as “the Respondent”) against the Decision of an Adjudication Officer under the Payment of Wages Act, 1991 (the Act). Mr Déalgan Healy, (herein after referred to “the Applicant”) referred a claim under the Act to the Workplace Relations Commission on 18thJanuary 2019 alleging a contravention of the Act which he stated occurred on 1stMarch 2018. The Adjudication Officer considered an application for an extension of time under Section 41(8) of the Workplace Relations Act, 2015 and allowed the extension. The Adjudication Officer found in favour of the Complainant’s complaint under the Act and awarded him the sum of €5,000.00. The Respondent appealed the Adjudication Officer’s Decision in its entirety. It contended that the Adjudication Officer erred in finding that there were reasonable grounds to extend the time limit and also in finding on the substantive claim under the Act.
The complaint under the Act related to payment of a Performance Related Award. The Applicant claimed that the Respondent had made an unlawful deduction under the Act, as he contended the Business Unit Multiplier used by the Respondent for the calculation of the award was inaccurate, thereby resulting in him receiving a lower payment.
Preliminary Issue – Time Limit and Application for an Extension of Time
In her submission to the Court, Ms Louise O’Byrne, Arthur Cox, Solicitors, on behalf of the Respondent, raised a preliminary issue contending that the Complainant’s complaint under the Act was referred to the Workplace Relations Commission out of time.
The Court decided to hear the preliminary issue of the time limit on the question of whether an extension of time can be granted in accordance with the provisions of Section 41(8) of the Workplace Relations Act, 2015. In the interest of efficiency of process, the Court informed the parties that it would issue a Determination on this preliminary matter and depending on the outcome, a further hearing on the substantive matter may or may not be necessary, as a Determination could be determinative of the appeal in its entirety. Both parties submitted detailed submissions to the Court on the preliminary issue, which are summarised here below.
The Applicant, who was unrepresented, told the Court that on 23rd March 2018, he received a letter informing him of his Performance Related Award which was to be paid at the end of the month. It referred to a Business Unit Multiplier of 0.6. On 1st May 2018, the Respondent provided him with a breakdown of the Performance Related Award calculations, but without details of the Business Unit Multiplier. He received a payment on 29th March 2018 and a second payment on 31st May 2018. However, as he felt that both payments fell short of the amounts he claimed were due, he raised a formal grievance with the Respondent, which continued until 3rd September 2018, when it was accepted by both parties that the internal grievance process had been exhausted. On 12th October 2018, he referred a complaint to the Inspectorate Service of the Workplace Relations Commission (WRC). An inspection was carried out by the Inspectorate on 17th January 2019, the Applicant co-operated with the inspection, no issues were identified and the Inspector closed the file. The Applicant stated that it was only on 17th January 2019 when he spoke to the Inspector did he realise that he had not submitted a claim under the Act and he proceeded to do so on 18th January 2019.
The Applicant stated that he had put the Respondent on notice from June/July 2018 that he was considering taking a claim under the Act, however, he argued that it should have alerted him to the statutory provision concerning time limits.
The Applicant submitted to the Court that if his referral to the Inspectorate is considered and if it is accepted that the contravention of the Act occurred on 31st May 2018, when he received his second payment, then his claim under the Act must be considered as in time. Otherwise, he submitted that the grounds for his application relate to a mistake on his part, the pursuance of his internal grievance and the Respondent’s failure to advise him of the statutory time limits.
Without prejudice to the Respondent's denial that there was no contravention of the Act, Ms O’Byrne contended that his claim was out of time. She contended that an entitlement to his bonus payment arose on 23 March 2018 and as his claim was not presented to the WRC until 18 January 2019, then his claim was almost four months out of time, and over four months since his internal appeal was exhausted.
Ms O’Byrne did not accept that the referral of a complaint to the Inspectorate of the WRC could constitute reasonable grounds and she referred toGlobe Technical Services Limited v Kristin MillerUDD1824, the Labour Court summarised the appellant’s position as being unaware of the jurisdiction of the Workplace Relations Commission for a considerable period and held:-
- “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.”
- 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.
Conclusions of the Court on the Preliminary Matters
The Court is satisfied that the Complainant’s complaint under the Act was presented to the WRC out of time. Whether the alleged contravention, took place on 1st March 2018, as cited in the complaint form, or on 23rd March 2018 when the Applicant was informed of the bonus payment calculations which are now in dispute or 31st May 2018 when he received the second bonus payment, it is clear that the complaint was not presented within the six months provided in Section 41 of the 2015 Act.
Therefore, the Court will now proceed to examine the application for an extension of time.
Section 41(8) of the Workplace Relations Act 2015, provides:-
(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 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.
As held inCementation,and in subsequent cases in which this question arose, the Court must consider whether an extension of time should be given for good reason.
The Applicant has put forward a number of reasons to excuse the delay and to obtain an extension of time. They related, in the main, to his processing of an internal grievance, and his mistake in referring the claim to the Inspectorate service of the WRC instead of the Adjudication Service of the WRC.
The Court does not accept that the processing of an internal grievance can be considered as a cogent reason which prevented the lodging of a complaint under the Act in time. The Court is of the view that the Complainant cannot circumvent the time limit set out in the Act by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. The Court addressed this issue inBrothers of Charity Services Galway v Kieran O’Toole[EDA 177] where it held:-
- “The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”
Furthermore, the Court cannot accept that there was any obligation on the Respondent to advise the Applicant of the statutory time limit provisions of the Act. The Applicant informed the Court that he had already put the Respondent on notice that he was considering such a course of action. The Court is of the view that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body, as held by the High Court inMinister for Finance v CPSU and Ors, 18 ELR 36.
The Court notes that even if it were to find that the complaint had been submitted to the correct service of the WRC on 12thOctober 2018, (and no such finding has been made) then it was still out of time, as the Applicant himself identified the contravention as occurring in March 2018.
Having regard to all the circumstances of this case the Court has come to the conclusion that the Complainant has neither explained the delay in initiating his claim nor has he put forward a justifiable basis upon which an extension of time could be granted in this case.
For the reasons set out herein, the Applicant's application for an extension of time is disallowed and the Respondent’s appeal succeeds. Therefore, the Decision of the Adjudication Officer is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
19 June, 2020Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.