Complainant

Respondent

Parties

Jay  Dave

DigiSure (Ireland) Limited

Representatives

  Self-Represented

 Bernard Niehaus

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-00068830-001

25/01/2025

The Complainant referred a complaint to the WRC on the 25th January 2025. He claimed that there was an underpayment of his salary for the period from the 1st March 2024 until the end of April 2024 , a failure to pay his salary between the end of April 2024 and the 19th November 2024 and a failure to pay his holiday pay.

The Complainant relied on the narrative as outlined in the WRC Complaint Form and the written submission, documentation and evidence submitted to the WRC on the 10th April 2025 in support of his case.

The Complainant sought an extension of the time limit permitted under Section 41 of the Workplace Relations Act 2015 (hereinafter referred to as “the 2015 Act”).   

The Respondent was represented by its CEO who acknowledged and expressed the Respondent’s gratitude for the Complainant and his colleagues dedication and ongoing support of the Respondent. He stated that the Respondent was not disputing the Complainant’s complaint in respect of his wages for the period from the end of April 2024 until the 19th November 2024 or his annual leave entitlement. The Respondent’s CEO believed that the salary paid to the Complainant for the period from the 1st March 2024 until the end of April 2024 had been calculated correctly based on the Complainant’s employment status.

The Respondent did not have any objection to the Complainant’s application for an extension of the time limit permitted under Section 41 of the 2015 Act.    

In making these findings, I have considered the documentation submitted by the Complainant, the evidence and oral submissions adduced at the hearing summarised above.

Preliminary Issue – Time Limit

The WRC Complaint Form was received by the WRC on the 25th January 2025 and the complaint relates to a period from the 1st March 2024 to the 19th November 2024. Therefore, it is first necessary to consider the time limits for referring a complaint to the WRC and decide on whether the Complainant meets the test for an extension 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.”

“(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.

In Cementation Skanska (formerly Kvaerner Cementation Limited) v. Carroll DWT 38/2003 the Labour Court stated:

“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 his or her 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.

In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

The test draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J. stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

In Salesforce.com v. Leech EDA1615, the Labour Court – having referred to the Determination in Cementation Skanska – stated:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, 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. Thirdly, 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. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.”

At the hearing I asked the Complainant to address me in relation to the issue of reasonable cause and my discretion to extend the timeframe, in line with the provisions of the legislation. He gave evidence that the Respondent continually provided written and verbal updates to employees, including himself, wherein it was stated that the non-payment of wages was due to banking issues and that it was anticipated that the matter would be resolved. It is clear from the Complainant’s evidence and a consideration of the documentation provided to the WRC that the Respondent did provide assurances to the Complainant that the wages issue would be resolved once the banking issues and the issues around the legal representative on those bank accounts were addressed. The Complainant, along with his colleagues, continued to support to Respondent and gave the Respondent the necessary time to address the issues.

In arriving at my decision I am guided by the fact that the Labour Court has given consideration to the meaning to be ascribed to “reasonable cause” in employment Statutes as the basis for extending time to initiate complaints under those enactments. The Labour Court has further emphasised that where reasonable cause is shown a decision maker must still consider if it is appropriate in the circumstances to exercise their discretion in favour of granting an extension of time. It should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case.

The Respondent did not dispute the Complainant’s evidence. I found the Complainant to be a credible witness and I find his explanation for the delay to be entirely plausible and I note that but for the explanations provided by the Respondent the Complainant would have referred his complaint within the time period provided for in the 2015 Act.

Taking into consideration the evidence of the Complainant and in line with the case law referred to above I find that in the totality of the circumstances of the instant case the Complainant has met the threshold required in order for me to exercise my discretion and extend the relevant timeframe on the basis that “reasonable cause” exists within the meaning of the 2015 Act. Having regard to the other factors identified as relevant for consideration by the Labour Court, I also find that there is no prejudice to the Respondent and that the Complainant has a good arguable case. In arriving at the decision, the fact that the Respondent does not dispute the Complainant’s claim and does not oppose the Complainant’s application for an extension of time have also been taking into account.

Substantive Issue

The Complainant claims that there was an underpayment of his salary for the period from the 1st March 2024 until the end of April 2024 and that he is due his salary for the period from the end of April until the 19th November 2024 when his employment ended and 13 days holiday pay.

The Relevant Law

The Payment of Wages Act 1991 (hereinafter referred to as “the 1991 Act”) provides the following definition of “wages” at section 1:

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

The above definition includes pay and holiday pay.

Sections 5(1) and 5(6) of the 1991 Act provides:

5(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

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

(b) 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

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

(2) …

(3) …

(4) …

(5) …

(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.

It is apparent from the foregoing sections that where wages are properly payable the failure of an employer to pay such wages is an unlawful deduction.

The Respondent’s CEO stated that the Respondent was not disputing the Complainant’s complaint that he was not paid his salary for the period from the end of April 2024 until the 19th November 2024 or his holiday pay. He believed that the salary paid to the Complainant for the period from the 1st March 2024 until the end of April 2024 was calculated correctly based on the Complainant’s employment status but that, the Complainant having raised the issue with him, he was looking into it further and he could not say for definite whether the correct salary had been paid to the Complainant.

I found the Complainant to be a credible witness. He gave evidence that he commenced employment with the Respondent on the 1st March 2024 and that his employment ended on the 19th November 2024. He was employed as a Software Developer and he earned €961.54 gross per week. The documentation submitted by the Complainant to the WRC clearly demonstrates that he was continuously raising his concerns regarding the non-payment of his wages and the Respondent was providing confirmation that it accepted that the wages were owed to the Complainant.  At the hearing the Complainant confirmed that there was an underpayment of his wages for the period from the 1st March 2024 until the end of April 2024, that he was not paid in wages for the period from the end of April 2024 until the 19th November 2024 and that he accrued 13 days annual leave entitlement which he was not paid for when his employment with the Respondent ended. He confirmed that he was owed €32,692.36 gross in respect of his salary and €2,496 gross holiday pay.

Having regard to the Complainant’s evidence I find that the total gross sum of €35,188.36 in respect of his pay and holiday pay was properly payable to the Complainant and was unlawfully deducted from his wages.

I therefore find that the complaint is well founded.

I decide that this complaint is well founded and I direct the Respondent to pay to the Complainant compensation of €35,188.36 gross less any lawful deductions. I consider this to be reasonable in the circumstances.