Complainant

Respondent

Parties

Sauyune  Donnelly

Swissport Irl Ltd

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Grace O'Malley Ibec

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-00065098-001

30/07/2024

The Complainant is employed by the Respondent since 7/4/2014.  She took up another role about two years later.  In August 2018 the Complainant discovered that she was not paid correctly.  The Respondent acknowledge the error and made several attempts to resolve the matter.  The Complainant was paid €20,858.63 on 20/06/2024.  She disputes the amount paid and is claiming that she should be paid for other years.  She is also seeking compensation for the work involved in pursuing her complaint over three years and further compensation for the stress and effects that this has had on her.  The Complainant is paid €16.51 per hour and is contracted to work 30 hours per week.  She submitted her complaint to the WRC on 30/07/2024.

The Complainant gave evidence on affirmation.  She outlined that she commenced employment on 07/04/2014.  She later took up the role of Ticket Desk Agent.  In or around April 2022 the Complainant raised a query with the Respondent’s HR department in relation to an issue with her pay.  This involved an underpayment of a shift allowance.  The Respondent agreed that there was an error and stated that they would pay an amount equal to one and a half years back money.  The Complainant disputed this amount as her previous 6-7 years were not included.    The Respondent also wanted the Complainant to sign a non-disclosure agreement and she refused to do so.

The Complainant gave evidence that she tried to engage with the Respondent over a long period of time and she did not get the matter resolved.  She submitted that there were changes in HR personnel which did not help as she had to deal with different people.

The Complainant also stated that she found the lack of responses from the Respondent frustrating.  This resulted in her making a complaint to the Data Protection Commissioner (DPC) in order to try and resolve the situation. 

The Complainant stated that when she submitted her complaint to the WRC a senior HR business person got in touch with her but the matter still remained unresolved.  The Complainant outlined that she is trying to deal with this matter for about 3-4 years and it is still not resolved.

The Complainant was asked by the Adjudication Officer to outline and quantify what the precise nature of her complaint was in terms of the amount of money she felt was due to her.  She provided the following details:

·       Money owed from January to May 2022:  €680.95

·       When the Respondent paid her some money in June 2024 she had to pay €8,400 in tax.  The Complainant feels that if she was paid correctly in the previous years she would have remained below the threshold for tax purposes.  As the Respondent did not pay her correctly she believes that they should be liable for her tax

·       The Complainant stated that in the past 3 – 4 years she has spent €300 in postage

·       Her 35 trips to the Post Office have cost her €800

·       Her printing ink, paper, photocopying and electricity cost her €1,000

·       There is an amount of €472.50 due from 2018

·       For stress, study and translation the Complainant is seeking €20,000.

In her closing remarks the Complainant stated that the Respondent got details from her in relation to the amounts but they did not revert.  The Complainant believes that “this could have been fixed”.  The Complainant stated that she is hoping this will not happen to anyone else.  The Complainant stated that she loves her job and is happy to get back to work.  The Complainant stated that she earned the money sought and to her it looks like her money was stolen.

The Complainant stated that the six-month time frame for bringing complaints of this nature does not apply to her.  The reason for this is that she gathered all her information and then went to the relevant duty manager who told her that there was no formal procedure in place to deal with this.  She was given a copy of the grievance procedure in 2024.

The Complainant also stated that if she was dealing with one person this could have been sorted.  Due to the turnover of staff in the Respondent’s HR department she dealt with about four different people. 

The Complainant stated that she wished to make a final point which was that none of this was her fault.  She received the information late and she was delayed all along by the Respondent.

The Respondent submitted a preliminary argument that the complaint is out of time.

The time limits for referring complaints to the WRC are set out in Sections 41(6) and 41(8) of the Workplace Relations Act 2015 (hereinafter referred to as “the 2015 Act”):

“(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.”

There is discretion to extend the period by a further six month provided “reasonable cause” is proved.  There is a high bar in relation to reasonable cause and the Respondent notes the case of Cementation Skanska v Carroll, DWT0338 which held “it is the Court’s view that in considering if reasonable cause exists, it is for the Appellant 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 Appellant at the material time.  The Appellant’s failure to present the claim within the six-month time limit much 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 Appellant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.

It was submitted on behalf of the Respondent that the complaint form was received by the WRC on 30/07/2024 and the alleged last date of contravention was May 2022. Therefore this complaint is significantly out of time.

Without prejudice to their preliminary argument it was submitted on behalf of the Respondent that the Complainant raised a query with the HR department in April 2022 about her rate of pay.  The Respondent investigated the matter and it was accepted that she was owed a back payment of €7,580.55 and offered to cover the period 01/01/2021 to May 2022.  The Complainant was unhappy that no payment was included for the period 2016 to 2020 but accepted that the payment for 2021 to 2022 was correct.  The Complainant submitted a new amount of €8,208.44 and the Respondent agreed to this new request.  The Complainant requested payment of this sum in October 2022.

As the Respondent was making a payment dating back of 12 months which was above the statutory limitation they requested that the Complainant sign a settlement agreement and sent a copy of this to the Complainant to review and seek advice.  The Complainant reverted with proposed changes and despite many email exchanges she refused to sign the agreement.

The matter continued into 2023 and the matter remained unresolved.  She advised the Respondent on 14/05/2024 that she would submit a complaint to the WRC.  The Respondent requested to meet with the Complainant but she refused.  The Respondent advised the Complainant on 10/06/2024 that they would process a payment of €20,858.63 subject to relevant statutory deductions.  This payment would cover the period from 2016 and a breakdown of the payment was provided to the Complainant.  The Complainant’s reply was that this payment would not resolve matters as she had complaints with the WRC and the DPC.  The Respondent paid the sum of €20,585.63 to the Complainant on 12/08/2024.

It was submitted on behalf of the Respondent that there are no unlawful deduction of wages during the cognisable period for the purposes of the act, i.e., 31/1/2024 to 30/07/2024.  It is the Respondent’s position that the Complainant was paid in line with her contract of employment during this time.

The Respondent refutes the claim under the Payment of Wages Act in its entirety as any payment owed to the Complainant between 2016 and 2022 was rectified.  The Respondent accepted that there was an error in the Complainant’s rate of pay during that period and this was rectified by a payment of €20,858.63.

It is the Respondent’s position that the complaint is substantially out of time and the Adjudication Officer does not the jurisdiction to hear this claim.

The Complainant in this case has submitted a complaint to the WRC to seeking Adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991. The Complainant and the Respondent provided written submissions in advance of the hearing.

The complaint was received by the WRC on 30/07/2024.  In addition to her complaint seeking payment of wages the Complainant at the hearing outlined that she is seeking compensation for the work and expenses involved in seeking to revolve her complaint with the Respondent and further compensation for the effects this matter has had on her.

By way of a preliminary observation, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Complainant by the Respondent in connection with the employment. 

I find that the Complainant’s Workplace Relations Complaint Form was submitted on 30/07/2024.

Section 5 of the Payment of Wages Act 1991 provides as follows:

“(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless–

the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

in the case of a deduction, the employee has given his prior consent in writing to it.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) provides that where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee, then, except insofar as the deficiency or non – payment is attributable to an error of computation, the amount of the deficiency or non – payment should be treated as a deduction made by the employer from the wages of the employee on the occasion. Central to the court's analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation”.

The first issue to be determined is whether or not the Adjudication Officer has the requisite jurisdiction to hear this complaint.  Section 41(6) of the Workplace Relations Act (2015) states:

“Subject to subsection (8), and 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”.

Section 41(8) of the Workplace Relations Act (2015) also 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”.

The facts of this case are that the Complainant submitted her complaint to the WRC on 30/07/2024.  She states that the alleged deduction took place in May 2022.  That is a period of two years and three months.

It is clear that the complaint in this case falls not only outside a period of six months but also the twelve-month extension period.  Consequently, I have no jurisdiction to hear and consider this complaint.

At the hearing the Complainant stated that she does not accept that a six-month period should apply to her complaint.  In relation to an extension the Labour Court in determination DWT0338 established the test for deciding if an extension of time should be granted for reasonable cause:

“Where and Adjudication Officer decides to consider a request for extension of time the onus is on the Complainant to satisfy the Adjudicator:

i.                      Firstly, that the reason(s) relied upon both explain the delay and provide a justifiable excuse for same;

ii.                   Secondly, that a causal connection exists between the reason proffered and the failure to apply in time;

iii.                 Thirdly, that as a matter of probability, the complaint would have been presented in time but for the intervention of the factor(s) proposed as having directly caused delay in lodgement of complaint”.

The onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of reasonable cause. 

I appreciate that the Complainant has been dealing with this matter for some time.  However, in the circumstances of this case I cannot find that she has satisfied the test for establishing reasonable cause as required under Section 8(2) (b) of the 1977 Act. I am also satisfied that the Complainant has not provided cogent reasons which would determine that there was reasonable cause for the delay in submitting the complaints.  In any event the complaints were submitted outside the period of time which an extension could provide.

At the hearing the Complainant was advised that Adjudication Officers of the WRC are creatures of statute and can only consider complaints submitted within the statutory time frame provided by relevant legislation.

It is clear that the complaint in this case falls not only outside a period of six months but also the twelve-month extension period.  Consequently, I have no jurisdiction to hear and consider this complaint.

I have decided that the complaint in this case falls not only outside a period of six months but also the twelve-month extension period.  In these circumstances I have decided that I have no jurisdiction to hear and consider this complaint.

Payment of wages.  Time frame.