FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES: OMNIPLEX (CORK) LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JOSEPH CALLAGHAN DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No.ADJ-00029574 CA-0039468-002 BACKGROUND: 2.The Worker appealed the decision of an Adjudication Officer under Section 7(1) of the Payment of Wages Act, 1991 on 11 July 2022. A Labour Court hearing took place on 15 February 2023. The following is the Court's Determination:- DETERMINATION: This matter comes before the Court as an appeal by Joseph Callaghan (the Appellant) against a decision of an Adjudication Officer in his complaint made under the Paymenet of Wages Act, 1991 (the Act) against Omniplex (Cork) Limited (the Respondent). Background The Appellant was employed by the Respondent until the date of his dismissal which both parties agreed happened on 12thFebruary 2020. He made the complaint giving rise to the within appeal on 31stAugust 2020. The Court established that the Appellant was not making a complaint that any breach of the Act had occurred following his dismissal or during the cognisable period for the within complaint which extends from 1stMarch 2020 to 31stAugust 2020. The Respondent submitted to the Court that the originating complaint to the Workplace Relations Commission had been made outside of the time limit of six months permitted by the Workplace Relations Act, 2015 at Section 41(8) for the making of a complaint in that no breach of the Act is contended to have occurred following the dismissal of the Appellant on 12thFebruary 2020 or within the cognisable period for the within complaint. Any complaint of a breach of the Act must therefore refer to an alleged act occurring outside the cognisable period for the within complaint. The Respondent also submitted that, whereas the complaint under the Act which was made to the Workplace Relations Commission concerned an alleged failure to pay his entitlement under the Minimum Notice and Terms of Employment Act, 1973, the Appellant at the hearing extended his areas of complaint to include sick pay and payment for overtime. The Respondent submitted that the jurisdictional issue of statutory time limits should be decided by the Court as a preliminary matter. The Court proposed to the parties that it would decide the matter which had been put forward by the Respondent to amount to a jurisdictional issue as a preliminary matter. The Court outlined that such an approach would result in a decision being made on that matter before hearing the parties in relation to the substantive matters giving rise to the complaint. Both parties agreed that this approach was sensible and agreed that the Court should proceed in that manner. Preliminary matter of time limits Summary position of the Appellant The Appellant submitted that he had relied upon his solicitor to make the complaint to the Workplace Relations Commission and that he himself had been seriously ill following his dismissal. He asked the Court to take these mitigating factors into account. The Court sought clarity as to whether he was in fact asking the Court to extend the time limit for the making of his complaint and he confirmed that he was. He submitted that the time period should be extended so as to encompass dates prior to 1stMarch 2020 in order to bring his complaints alleging breaches of the Act occurring before that date within time. Summary position of the Respondent The Respondent submitted that no cogent basis had been tendered by the Appellant for the Court to extend the time limit for the making of a complaint in relation to matters alleged to have occurred more than six months before 31stAugust 2020. The Appellant was legally advised at all material times and no reasonable cause existed for the delay in making such complaint. The Respondent asked the Court to consider its own jurisprudence in including in the case ofCementation Skanska v Tom Carroll DWT 0388where the Court had considered the meaning of the legislative test of ‘reasonable cause’. The Law The Workplace Relations Act, 2015 makes provision at Section 41(8) as follows
The test formulated inCementation Skanska v James Riordan DWT0343draws on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. In that case Costello J. stated as follows:
The Court notes that the Appellant was advised by a solicitor at the material time, although he was not so advised or represented before the Court. It is clear that the Appellant’s solicitor did lodge the complaint under the Act with the Workplace Relations Commission on 31stAugust 2020. The Court has been offered no cogent reason for the delay in the lodgement of the complaint following the Appellant’s assignment of that responsibility to a solicitor. If an issue impeded or inhibited the solicitor in making the appeal in time the Court is unaware of such an issue. The Court is aware from the submission of the Appellant that he himself was ill for at least part of the time period of six months following his dismissal, but no details have been supplied to the Court of the period of time involved in that matter or the extent to which the Appellant’s serious illness impacted upon the capacity of the solicitor to make the complaint in time. The Court has consistently taken the approach that it is for an applicant for an extension of time to establish that there is reasonable cause for a delay in making a complaint such that the Court should extend the period permitted for making a complaint. The applicant must both explain the delay and provide a justifiable excuse for the delay. The onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. The Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. In this case the Court has not been provided with an explanation as to why the complaint as regards matters alleged to have occurred before 1stMarch 2020 in time, was not made in time. It is certainly the case that the Appellant has submitted that he effectively left it to his solicitor to make the complaint, but he has not set out to the Court any explanation as to why the complaint was not actually made on time. The fact that the solicitor was, according to the Appellant, entrusted with making the complaint is not, of itself, a basis for concluding that reasonable cause existed for the delay. Similarly, while the Court can sympathise with the Appellant on his serious illness, it has not been possible to identify how or to what degree the illness of the Appellant caused a delay in making the complaint. He has submitted that, notwithstanding his illness, he entrusted his solicitor with making the complaint. In those circumstances it is not possible to conclude that the delay has been explained by, or that a causal connection has been made, between the Appellant’s illness and the delay. Having regard to all of these circumstances, the Court concludes that the Appellant has not established a reasonable cause for the delay in making his complaint to the Workplace Relations Commission. The Court consequently concludes that it is not appropriate to order an extension of time for the making of the Appellant’s complaint. In those circumstances, and noting that the Appellant has submitted that no complaint was before the Workplace Relations Commission or is now before the Court on appeal relating to matters alleged to have occurred after 1stMarch 2020, the Court concludes that the Appellant’s appeal must fail. Decision The complaint of the Appellant to the WRC relating to any matter occurring before 1stMarch 2020 was made out of time and no reasonable cause for the delay in making the complaint has been shown. The within appeal must therefore fail. The Court consequently affirms the decision of the Adjudication Officer The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |