Complainant

Respondent

Parties

Greta  Ivanova

Mainline Links

Representatives

Dayana Yordanova

 Managing Director  

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-00067143-001

04/11/2024

The Complaint was lodged with the Commission on the 4th of November 2024.

The Complainant’s employment ended on the 23rd of July 2023.

The Complainant stated that her complaint was sent to the Commission earlier than this date and was lodged by the Bulgarian Labour Inspectorate on her behalf.

The following is a statement about the lodgement of her complaint with the Workplace Relations Commission:

Dear, I believe that my Complaint ref. CA-00067143 has been filed within the 12-month deadline, as I filed a report with the Bulgarian Labor Inspectorate in March 2024 and from there they assured me that they would send a report to WRC immediately, but since our labor inspectorate has not received any response from you for over a year now, we have decided to personally file our complaint to the WRC. In view of this, please consider my complaint as submitted within 12-month deadline. A day ago we received a response from the Bulgarian labor inspectorate: Our Complaint was filed to WRC with the help of the Bulgarian Labor Commission on 10.04.2024 with Ref. 617558.1. Our Complaint was referred to Mrs Yaneva from the Department of Labor and Social Affairs - Republic of Ireland for assistance and request the WRC to be informed. The Bulgarian Labor Inspectorate hasn't received a response from either the WRC or Ms Janeva. Mrs Greta Ivanova also hasn't received any answer to her Complaint. Kind regards, Greta Ivanova

The Complainant’s employment ended on 23rd of July 2023.

The Workplace Relations Act 2015 Act at section 41 provides that a complaint must be lodged within 6 months of the matter complained about and no later than 12 months where reasonable cause exists:

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.

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.

Section 6 clearly states an Adjudication Officer shall not entertain a complaint after 6 months subject to sub section 8.

Even if it was accepted that the complaint was lodged in March 2024 as stated as I filed a report with the Bulgarian Labor Inspectorate in March 2024 and from there they assured me that they would send a report to WRC immediately that would mean that the complaint was lodged outside the 6 months window.

The next engagement directly with the Workplace Commission is November 2024.

The complaint is about the following allegation:

Mrs. Ivanova did not claim that her holiday during working hours was not paid, but that upon inquiry she was deducted twice the sum of 28 euros for transport to the airport, and that she was not reimbursed the sum of 19 euros - the remainder of the rental deposit. Separately, due to the fault of the employer Mr Kalinov, Greta Ivanova was not taken to the workplace on 19.07.2023, which day was not declared a day off by the employer. Because of the missed working day, Greta Ivanova loses the sum of 96, 80 euros. In view of the above, please provide us with the documents on the basis of which you made the inspection, as the Bulgarian labor inspectorate stated that they were not provided to it and we should request them from you. We should satisfy ourselves that the inspection you have carried out corresponds exactly to the complaint we filed and the facts set out in it.

The date of contravention is the 19th of July 2023 and also possibly the date of payment would fall due in late July. This would mean that the 12-month window would end on or about the end of July 2024.

There is no evidence at the Commission of receiving the complaint during the 12-month period where I could have jurisdiction of the complaint.

That Respondent has stated that the complaint is out of time.

The case law and explanation of what reasonable cause is summarised in Regan’s Employment Law Bloomsbury 2nd Edition:

[28.24]

The case law of the Labour Court demonstrates that, with the exception of employment equality cases, a complainant must not only show that ‘reasonable cause’ was present but also that it prevented or inhibited the timely presentation of the complaint. 45

Section 77(5)(b) of the 1998 Act does not require that the reasonable cause prevented the claim from being lodged within the initial period.

In Cementation Skanska v Carroll, 46 the Labour Court said that, in considering whether ‘reasonable cause’ exists, it was for the complainant to show that there were ‘reasons which both explain the delay and afford an excuse for the delay’. The Court continued:

The explanation must be reasonable, that is to say that 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 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 [or she] would have initiated the claim in time.

The Court went on to say that the length of the delay should also be taken into account. A short delay might only require ‘a slight explanation’ 47 whereas a long delay might require ‘more cogent reasons’.

[28.25]

Ordinarily, ignorance of one’s legal rights would not provide a justifiable excuse for a failure to bring a claim in time. It would appear, however, that the Labour Court is prepared to take into account the fact that foreign nationals could not be expected to understand the nature or detail of the process through which their rights might be vindicated. 48

In Alert One Security Ltd v Khan, 49 the Labour Court extended time in circumstances where the complainant was both ignorant of how to process a complaint and was relying on the assurances given to him by the employer that he was either receiving his legal entitlements or that those entitlements would be met. The Court regarded it as ‘well settled’ that a material misrepresentation which caused or contributed to a delay in presenting a complaint could constitute ‘reasonable cause’ which both explained the delay and provided a justifiable excuse for same.

The amicable nature of the relationship that existed prior to the termination of employment does not of itself constitute reasonable cause for delay in presenting a complaint. 50

The Complaint is in time and was lodged withing the 12 month period by a 3rd party and the Respondent unlawfully deducted payments as detailed. The Complainant relied on the 3rd party representations that it had been lodged on time.

The Complaint is out of time and no unlawful deductions were made.

I find that I have no jurisdiction to hear the complaint as the date of lodgement on file is the 4th of November 2024 which is more than the prescribed period of 12 months where a complaint for reasonable cause could be heard relating to an alleged contravention of the Payment of Wages Act 1991. As the complaint has been lodged outside the prescribed statutory period I must decline jurisdiction as the complaint is out of time and is statute barred.

I find that I have no jurisdiction to hear the complaint. This is so as the date of lodgement on file is the 4th of November 2024 which is more than the prescribed period of 12 months where a complaint for reasonable cause could be heard relating to an alleged contravention of the Payment of Wages Act 1991.

There is no evidence that in fact the complaint has been received by the Commission other than in November 2024 which is out of time.

 Even if there was evidence that it was received in March 2024 that is out of time as the Act prescribes 6 months and an extension of time may be given for a further 6 months. If there was evidence that it was sent by a 3rd party and received, which has not been confirmed, the Complainant would have to make a case for extension of time for reasonable cause and that has not been made out.  For these reasons I must decline jurisdiction as the complaint is out of time.

No Jurisdiction.