Complainant

Respondent

Parties

Gerard  McGrath

An Garda Síochána

Representatives

Molloy & Evans Solicitors

Chief State Solicitor’s Office

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-00058173-001

08/08/2023

The Complainant commenced employment with the Respondent on 26th January 1983. The Complainant’s employment came to an end with his retirement on 4th January 2021.

On 8th August 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent failed to pay an allowance due to him for the during the period of restriction of duties arising from the Covid-19 pandemic. By response, the Respondent stated that the matter had been internally investigated, and that no such allowance was due to the Complainant. They further stated that the complaint was clearly statute barred, and as such the Complainant did not have standing to bring the present complaint.

While attempts were made to bring the matter on for hearing, the parties indicted that the matter was being considered internally and as such the matter stood adjourned for a period of time. Following the completion of these internal processes, the matter was duly listed for hearing on 25th April 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

As set out above, the Respondent submitted that the complaint is statue barred. As this will be determinative of the entire set of proceedings, it will be considered in advance of the substantive matter.

By submission, the Complainant accepted that he retired on 4th January 2021, and that the present complaint was not lodged until 8th August 2023, slightly over 32 months later.

Nonetheless, they submitted that the present complainant related to the non-payment of certain allowances during the redeployment of the Complainant during the Covid-19 pandemic. The Complainant stated that he raised this issue internally at the relevant time with the Respondent, however they did not accept or properly respond to his application. In July 2023, the Complainant became aware of the circular inviting members to submit their claims for loss of allowances during the Covid-19 pandemic. The Complainant submitted this form by 13th July 2023, approximately three weeks prior to referring the present complaint. While the Complainant was unaware of the outcome of this application on the date of referral of the complaint, by the date of the hearing the Complainant had been informed that his application had been unsuccessful.

Having regard to the foregoing, the Complainant submitted that the date of contravention was not the Complainant’s final day of work, but that the contravention had remained ongoing for a period of time, until the date of the referral of the present complaint. The Complainant further submitted that he completed his application under the relevant circular and submitted that same on 14th July 2023. The Complainant stated that the date of payment fell after that date, and was well within the cognisable period for the purposes of the present Act.   

By response, the Respondent stated that the Complainant’s case was clearly and unambiguously out of time. In this regard, they submitted that the contravention to which the complaint related occurred in the months prior to the Complainant’s retirement, itself a date some years prior to the referral of the complaint. The Respondent submitted that the Complainant raised these issues locally prior to referring the present complaint, and that there was no impediment to his complaint at the relevant time.

In addition to the foregoing, the Respondent submitted that the Complainant fundamentally misunderstood the purpose and function of the circular referenced in his submissions. In this regard, the Respondent submitted that the relevant circular invited applications for a loss of earnings in those members that had switched from the non-core roster to the supplementary covid contingency roster during the period of the restrictions arising from the Covid-19 pandemic. These terms were clearly inapplicable to the Complainant, who sought to claim for a loss of allowances during the same period.

Having regard to the foregoing, the Respondent submitted that the present complaint was submitted some years outside that provided for in the impleaded Act. In these circumstances, they submitted that the Complainant does not enjoy standing to being the present complaint.   

Regarding the present case, the Respondent has submitted that in circumstances whereby the Complainant retired from employment some year prior to the referral of the same, that the matter is statute barred for the purposes of the impleaded Act. By response, the Complainant submitted that the wages in question remained due and owing for some time following his retirement. He further stated that this issue was considered by the Respondent within the cognisable period for the purposes of the present complaint.

In this regard, Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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.”

Thereafter, section 6(8) provides that,

“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 the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. stated that,

“…the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period”

And,

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

Having regard to the agreed factual matrix present by the parties, the Complainant’s employment ended some two and a half years prior to the referral of the present complaint and is outside the cognisable period for the purposes of the present Act, even with the application for extension provided for in Section 6(8), referenced above. In addition to the same, it is noted that the period for which the Complainant is seeking to recover unpaid allowances relates to a period some time prior to the ending of his employment, itself a substantial period of some years. In these circumstances, the dates “on the date of the contravention to which the complaint relates” as referenced in McDermott, cited above, is not the end date of the Complainant’s employment, but the dates on which he allegedly suffered an illegal deduction to his wages by the non-payment of an allowance.

The position of the Complainant in this regard was that the matter was considered by the Respondent within the cognisable period for the purposes of the present complaint, and duly denied thereafter. While the Respondent has submitted that the matter under consideration was not the subject matter of the present complaint, taking the Complainant’s position at its height, this would simply represent an internal process and investigation on the part of the Respondent. These investigations would not have a material effect on the date of the contravention in question. In essence, the contravention in question still occurred some years previous, regarding of the outcome of the purported internal investigation.

Having regard to the foregoing, I find that the no contravention occurred within the cognisable period for the purposes of the present Act. In these circumstances, I find that the complaint is not well-founded.

I find that the complaint is not well-founded.

Wages, Statute Barred, Date of Contravention