ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029830
Parties:
| Complainant | Respondent |
Parties | Wojciech Szabelski | Grant Engineering Ulc |
Representatives | Ms. Aine Feeney, SIPTU | Ms. Aoife McDonnell, IBEC |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00039479-001 | 31/08/2020 |
Date of Adjudication Hearing: 20/05/2022
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
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.
Background:
The Complainant commenced employment with the Respondent on 12th August 2015. The Complainant remains a permanent, full-time member of staff, in receipt of an average weekly payment of €668.00. On 31st August 2020, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent had refused to categorise a period of leave as Force Majeure, with the consequence that he suffered a unauthorised deduction of one day of wages. In denying this allegation, the Respondent submitted that the Complainant had not established the statutory definition for Force Majeure leave and consequently, the wages in question were not properly payable for the purposes of the preset Act.
A hearing in relation to this matter was convened for, and finalised on, 20th May 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side in the course of the hearing.
At the outset of the hearing, the Respondent raised a preliminary objection as to the Complainant’s jurisdiction to bring the present complaint. As this application is potentially determinative of the complaint, it will be considered in advance of the substantive matter. |
Summary of the Respondent’s Case as to the Preliminary Point:
The Respondent submitted that the date of the alleged non-payment of wages was 31st January 2020. In circumstances whereby the complaint was not received by the Respondent until 31st August 2020, they submitted that the complaint was referred in excess of six months from the date of the contravention and the matter is consequently statute barred. |
Summary of the Complainant’s Case as to the Preliminary Point:
While the Complainant agreed that the date of the alleged non-payment was 31st January 2020, they submitted that the Respondent’s position in respect of the same was not confirmed until July 2020, rendering the complaint in time for the purposes of the present Act. |
Findings and Conclusions:
Section 6(6) of the Workplace Relations Act 2015 provides that, “…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.” While it is common case that the contravention in question occurred on 31st January 2020, the Complainant has stated that the alleged refusal to classify the date as Force Majeure occurred in July 2020, rendering the complaint in time. Regarding the date of contravention for the present Act, in the matter of In the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. stated that, “…the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period.” Following from the above, the contravention, for the purposes of the present Act, occurred on the date of payment following 31st January. Given that the Complainant stated that he was paid on a weekly basis, the latest possible date for this contravention was 6th February 2020, rendering the date of contravention in excess of six months from the date of referral of the present complaint. In such circumstances, I find that no contravention of the Act occurred within six months of the referral of the same and, consequently, the matter is not well-founded. Notwithstanding the foregoing, I note that the Respondent has undertaken to pay the Complainant for the date in question. |
Decision:
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.
I find that no contravention of the Act occurred within six months of the referral of the same and, consequently, the matter is not well-founded. |
Dated: 3rd March 2023
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Date of Contravention, Time Limits |