Complainant

Respondent

Parties

Sharon  Mc Donnell

MyDocs

Representatives

  Self- represented.

 Moloney and Co Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00062129-001

11/03/2024

The complainant has submitted a complaint of an unlawful deduction of €1106.00 from her wages on 31/08/2023.

The complainant had been employed with the respondent’s medical practice as a receptionist from 14/10/20222- 14/8/2023.

Her gross monthly wage was €2408.

She submitted her complaint to the WRC on 11/3/2024.

Jurisdictional issue.

 Statutory time limits.

Without prejudice to the respondent’s contention that there was no unlawful deduction from the complainant’s salary, the respondent submits that the WRC do not have jurisdiction to hear this complaint.

The respondent submits that the alleged deductions occurred on three separate occasions, on 4, 7 and 8 August 2023. The complainant submitted her complaint on the 11/3/2024. The respondent contends that the cognisable period as per section 41(6) of h Workplace relations Act, 2015, is 8 August to 7 February 2024.

The complainant made this complaint to the workplace in a previous complaint. That complaint was dismissed. She was given 42 days to appeal, and she never appealed it. This is now the same complaint 8 months later.

The respondent submits that the complainant has failed to make any reasonable cause for the extension of time. Furthermore, the complainant was in receipt of advice from the Citizens Information Service at this time.

The respondent relies on the decision of Health Service Executive v McDermot (2014,) IEHC 331 where Hogan J stated

“The key question is the date of the contravention to which the complaint relates.

 In other words,

“time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention but rather from the date of that contravention to which the complaint relates.”

The respondent submits that McDermott renders this complaint to be inadmissible.

Jurisdictional issue.

 Statutory time limits

The complainant states that she had submitted a complaint of a wrongful deduction under an incorrect statute and used an incorrect address. Her complaint was not upheld. She states that she did not know she could appeal that decision.

She asks that these circumstances be considered as sufficient reason to allow her complaint, though out of time, to be heard.

Jurisdictional issue.

Statutory time limits.

I am obliged to determine if I have jurisdiction to hear this complaint.

The matter of determining a preliminary issue such as statutory time limits in advance of addressing the substantive complaint has been dealt with in several cases.

 In Mary Sheehy v. Most Reverend James Moriarty [UD1264/2008] the Tribunal held as follows:

‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the claims were not instituted within the time periods set out in the legislation”.

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA101], the Labour Court issued a preliminary decision.  The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J in B.T.F. v. Director of Public Prosecutions 2 ILRM 367.   In the latter case Hardiman J held as follows

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear".

The same conclusions were reached in Donal Gillespie v. Donegal Meat Processers [UD/20/135

and in Bus Eireann v. SIPTU[PTD8/2004].

The authorities point to the requirement for me to determine the jurisdictional issue in the first instance.

Date of the Contravention.

The complainant’s complaint form stated that the deduction occurred on the 31/8/2023.

The complainant submitted her complaint to the WRC on 11/3/2024.

Relevant Law.

The cognisable period for the purposes of this complaint is as per section 41 (6) of the Workplace Relations Act, 2015. It provides as follows:

 “6) 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”

Therefore, the cognisable period is 31/8/2023-28/2/2024.

Section 41 (8) allows for an expansion of time and states:

“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”.

Findings and conclusions on the admissibility of the contravention occurring on the 31/8/2023.

In terms of section 41(8) availing the complainant, the matter of extending time where reasonable cause exists has been addressed in many decisions. In Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 the test 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.”

The complainant’s evidence is that she submitted a complaint of a wrongful deduction by the respondent, using the wrong address.  This and a previous complaint, ultimately not upheld, and not appealed through lack of knowledge is the cause of the delay. She asks the WRC to consider the fact that she used the wrong address and to admit this complaint as the merits of her complaint- a deduction of €1106- warrant its admission.

Lack of Knowledge

In Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that lack of knowledge does not prevent the statutory limitation period from starting to run. She held that

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

I find that the complainant does not meet the threshold outlined in Cementation Skanksa whereby the statutory timeframe within which she is obliged to refer this complaint under the Act can be expanded for reasonable cause or for a lack of knowledge.

Furthermore, the complainant was in receipt of advice from the Citizens information Service at this time.

Based on the evidence and precedent, I cannot find that I have jurisdiction to hear this contravention of 31/8/2023 which fell outside the cognisable period which is the 31//8/2023- 28/2/2024

I must find this complaint to be time- barred.

I decide that I do not have jurisdiction to hear this complaint.

Time- barred complaint