Complainant

Respondent

Parties

Amandeep  Kaur

Concored Limited

Representatives

Patrick Nicholas BL instructed by Martin Tynan O'Donovan Solicitors

 A Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063657-001

23/05/2024

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

CA-00063657-003

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063657-005

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063657-006

23/05/2024

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

CA-00063657-007

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063657-008

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063657-009

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063657-010

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063657-011

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063657-012

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063657-013

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063657-014

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063657-015

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2024

CA-00063657-016

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00063657-017

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00063657-018

23/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00063657-019

23/05/2024

The Complainant, who is an Indian national and has a Degree in Business Management,  was employed as a Business Sales Executive and submitted 17 different complaints relating to her employment. She was employed from 17/10/2022 to 27/1/2024 on a Critical Skills Work Permit. The Respondent operates a number of small supermarkets. Two Hearings were held into the complaints but a vast majority of the parties positions were supplied in written formats in pre or in between the Hearings or post the final Hearing. The parties were given the opportunity to respond to each submission received.

The Complainant was initially engaged as a skilled office worker, titled Business Sales Executive, but in practice her duties were to assist in the retail, serve in the shop inter alia stacking shelves, assisting customers and purchasers as a teller at the shop front. 

As the Complainant is a non-national, this raises issues as to her employment permit and visas, specifically that she obtained same on the basis that she was a “skilled worker”. The Complainant was granted a Critical Skills Employment permit as a “Business Sales Executive”. The permit is valid from 30/01/2024 to 29/01/2025.

The Complainant’s employment with Respondent commenced on 17th October 2022. The Complainant was informed that her employment was terminated in or around 21st or 22nd December 2023. The Complainant worked with the Respondent until 27th January 2024, she had been rostered for February 2024 but was removed from the company WhatsApp messaging service group. 

The claims centre on the termination of the Complainants employment without justifiable grounds, and her statutory right infringements including but not limited to actions on behalf of the Respondent contrary to provisions contained in the Organisation of Working Time Act 1997 and the Payment of Wages Act

Preliminary Issues

The original Acquired Rights Directive 77/187 (“ARD”) was implemented in Ireland by S.I. 306 of 1980. The ARD has since been updated by Directive 2001/23 which was implemented by the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003) (“TUPE Regulations”) and amended by the Workplace Relations Act, 2015.  Regulation 3 provides as follows:-

“3. (1) These Regulations shall apply to any transfer of an undertaking, business, or part of an undertaking or business from one employer to another employer as a result of a legal transfer (including the assignment or forfeiture of a lease) or merger. 

(2) Subject to this Regulation, in these Regulations -

 “transfer” means the transfer of an economic entity which retains its identity;            “economic entity” means an organised grouping of resources which has the            objective of pursuing an economic activity whether or not that activity is for profit            or whether it is central or ancillary to another economic or administrative entity.”

 The implementing Regulations set out that if a business is taken over by another employer as a result of a legal merger or transfer, the rights of the employees are protected. It can also apply if part of the business is being sold off or contracted out. There is a right to be consulted prior to the transfer. Employees of both relevant businesses are entitled to be informed by both the transferor and transferee of:-  

1.         The date or proposed date of the transfer;

2.         The reasons for the transfer;

3.         The legal implications of the transfer for the employees and a summary of any relevant economic and social implications of the transfer for them; and 4. Any measures envisaged in relation to the employees.

 In Alemo-Herron and Others v. Parkwood Leisure Limited Case 326/11, the Court of Justice made a number of important statements of principle.  It pointed out that the relevant Directive did not aim solely to safeguard the interests of employees in the event of transfer of an undertaking but to ensure a fair balance between the interests of those employees, on the one hand and those of the transferee, on the other.

 It is submitted that the Respondent is an entity which may fall within scope of the Regulation. The Complainant was not appraised of the changes to the Respondent Company’s identity. To her knowledge, the economic entity retained its identity and there may have been a change to the Complainant employer. The Regulations are included to err on the side of caution by including the Complainants rights, and to further assist the court in understanding the difficulties encountered by the Complainant. 

The Complainant relies on Mythen v. The Employment Appeals Tribunal [1990] E.L.R. 1 to fix the  transferor or transferee with liability for this claims set out hereunder in the event that are determined to be well-founded. 

Landsorganisaitionen I Danmark v Ny Molle Kro Case 277/86 is relied upon for the interpretation of 77/187 where the intention of the directive was defined, stating that it is “to provide for the protection for employees in the event of a change in employer, and in particular, to ensure that their rights are safeguarded”.

CA-00063657-001

Pay

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.

The Complainant submits that the payslips as received by the solicitor do not accurately show the amounts paid to her. The circumstances of the payments are that the she was paid in cash in an envelope, and took a contemporaneous handwritten note of the amounts received.

The Contract of employment states: 

“8. Remuneration

8.1 You will be paid a basic salary of €35,000 gross per annum. Your remuneration and benefits willbe reviewed on a six monthly basis. Any changes to your remuneration and / or benefits will be notified to you in writing…

8.4 In the event that there is any underpayment of wages to you, the Company will adjust the next available wage payment by the amount of the underpayment, unless prior payment has been made.”.

The Complainant officially received gross pay in the amount of €28,388.04. This amount is far below her contractual pay. The Complainant additionally did not receive the amounts purported to have been paid to her in the payslips. It is understood that these payslips were produced as part of an investigation conducted on the Respondent. 

CA-00063657-003

Pay

The Complainant was not given compensation for working on Sundays for the duration of her employment with the Respondent. 

Section 14 of the Organisation of Working Time Act 1997 sets out statutory rights for employees in respect of Sunday working. Any employee who is required to work on a Sunday and, his or her having to work on that day has not been taken account of in the determination of pay, shall be compensated as follows:

I.               by the payment to the employee of a reasonable allowance having regard to all the circumstances, or

II.             by increasing the employee’s rate of pay by a reasonable amount having regard to all the circumstances, or

III.           by granting the employee reasonable paid time off from work having regard to all the circumstances,

or

IV.          by a combination of two or more of the above means.

 In accordance with provisions of the Organisation of Working Time Act 1997 a premium payment will apply to Sunday working. Section 14 of the Act specifies the means by which the premium should be granted. The nature and value of this premium rate should be negotiated and agreed between the employer and the trade union(s) representing employees or between the employer and the employees who are affected by Sunday trading, in circumstances where employees are not unionised.

CA-00063657-005

Pay

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.

The Complainant did not receive her holiday pay upon the change of superiors from Amandeep Gill to Bardeep Hoode which occurred on or around February 2023. 

CA-00063657-006

Pay

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant submits that she did not receive her Public Holiday Pay entitlements.

CA-00063657-007

Pay

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

The Complainant submits that she did not receive any payment in lieu of notice of termination of employment. The employment was terminated without notice. The event of termination occurred without notice in any form.

CA-00063657-008

Hours of Work

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant submits that she did not receive a daily rest period.

CA-00063657-009 

Hours of Work 

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant submits that she did not receive breaks. 

CA-00063657-010

Hours of Work

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997. The Complainant did not receive paid holidays when the director and location of work changed.

CA-00063657-011

Hours of Work

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant did not receive public holiday entitlements once there was a change of director and a change of location of work. The Complainant was informed that as the Respondent  Company was paying her tax, she was not entitled to public holiday.

CA-00063657-012

Terms and Conditions of Employment

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 .

The Complainant may elect to withdraw this claim.   

 CA-00063657-013

Terms and Conditions of Employment

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant was not notified in writing of a change to her terms of employment.

CA-00063657-014

Terms and Conditions of Employment

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant did not receive my core terms in writing under the  Terms of Employment (Information) Act, 1994.

 CA-00063657-015

Unfair Dismissal

 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 

Section 14 of the Unfair Dismissals Act, 1977 provides that an employer shall give to the employee notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee. 

The employers own disciplinary procedures, such as referred to in the contract, and potentially in the Company Handbook,  of which the Complainant had not had sight, have not been followed. The substantial breach of these procedures demonstrate that the dismissal was procedurally unfair. 

In determining the grounds of dismissal Section 14(4) of the Unfair Dismissal Act allows an employee to request reasons for dismissal. It is submitted that the dismissal of the Complainant was not the action of a reasonable employer and therefore the Complainant was unfairly dismissed. Bunyan v. UDT (lreland) Ltd. [1982] ILRM 404 refers. There is a requirement for all employers to act reasonably in effecting dismissal and this includes consulting the employee and providing notification and reason for dismissal. Whelan v Edward Flahavan & Sons Ltd UD1643/2014 refers. 

The Complainant was unfairly dismissed and has the requisite 12 months service. The redress sought by the Complainant is either re-instatement or compensation. 

 Section 14 of the Unfair Dismissals Act sets out that an employer shall give to the employee notice in writing setting out the procedure which the employer will observe before and for the purpose of dismissing the employee. This is stated within the legislation to occur not later than 28 days after he enters into a contract of employment with an employee.

In Maxwell v Coruscate Ltd. (t/a Glenview Hotel) [1992] E.L.R. 122 centred on a dispute between the Complainant and with the head chef. The Complainant was told to leave whereupon he asked for his P45 and was told to get out of the kitchen. A few days later the claimant went to speak to the owner of the owner to discuss this when the owner said there was nothing he could do. The EAT took the view that this amounted to a dismissal by the employer. 

n Cebina v XL Fuels Group Ltd, UD126/2014 MN55/2014, the Complainant put two spoonfuls of oven cleaner into a cup and brought it home. She did not ask permission to take it and neither did she attempt to conceal it from people around her, including the owner's brother. She took a lift home with her supervisor and told her what was in the cup. A short time later her supervisor phoned and said that the owner wanted to know what she had in the cup. She then received a phone call from MS, an admin assistant, who said the claimant should not report for work. The claimant asked if MS meant the following day or forever; MS confirmed forever. The claimant phoned  the supervisor to ask about her P45, and was told to wait for a few days. The tribunal awarded Ms Cebina €12,500 for the unfair dismissal and €680 for two weeks of pay under the Minimum Notice and Terms of Employment Act. 

 Fair procedures were not followed by the Respondent Company with regard to the Complainant’s termination. Calculation loss was considered in this recent case: Waterford Health Park Pharmacy Ltd T/A Stratus Healthcare -V-Aoife Foley Adj-00032527 (Ca00043162-001), as follows: "A key fact in this case, and one which has been conceded by the Respondent, is that there was not a scintilla of procedural fairness in the manner in which the Complainant was dismissed from her employment. The second element of section 7 that the Court also notes is that the meaning it attributes to financial loss is framed as ‘including’ actual loss, estimated prospective loss etc. In short, the statute does not purport to set out an exhaustive definition of “financial loss”.

The Complainant alleged that the conduct of her employer, and its servants and agents such as the Respondent’s actions in dismissing the Complainant without notice, cause or provision of reasons, and from an objective viewpoint, the conclusion is that the Complainant was unfairly dismissed. 

Calculation of Financial Loss

The applicable legislation is the Unfair Dismissals Act 1977 (as amended) (the “1977 Act”). There are two provisions in the 1977 Act that are relevant to the calculation of financial loss following a payment of statutory redundancy payment to an employee, namely section 7 and section 19 of the 1977 Act.  

 Section 7 of the 1977 Act

19.1 Section 7 of the 1977 Act deals with “Redress for Unfair Dismissal”. Section 7(3) of the 1977 Act defined “financial loss” as:

“any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to 2014, or in relation to superannuation”.

An Adjudication Officer in the WRC has jurisdiction to award “financial loss” under s.7 of the 1977 Act, to include:

(i)     Actual loss (which are losses to the date of the hearing or “current losses”), and

(ii)    Estimated prospective loss (or what practitioners term “future losses”); and

(iii)  The value of any loss or diminution of redundancy/ superannuation, attributable to the dismissal.

High Court Definition of “Financial Loss”

In 2016 the High Court defined “financial loss” in the judgment of Brady v Minister for Social Protection [2016] IEHC 533. Ms Justice Baker (now in the Supreme Court) held at para. 26 that “financial loss” is defined as:

“the determining factor in the amount of the award that may be made, not remuneration as such…”

A Complainant may claim compensation for financial loss in respect of any period in the future, and the statutory maximum of 104 weeks’ remuneration is a limit in the amount that will be awarded, and not in respect of the time for which loss may be claimed.

 Potential Redundancy

The Complainant is aware that her exact position and duties were advertised in the shop premises in and around the date of her dismissal. The potential for a redundancy claim is aired herein on that basis. 

While the Redundancy Payments Act does not prescribe a set procedure for an employer to follow in a redundancy situation, the Unfair Dismissals Act, specifically at section 6(7)(b) provides than an adjudicator may have regard to the process followed by the employer to implement the redundancy. the respondent must prove that:-

 I.               The dismissal resulted wholly or mainly because of redundancy; II.              The employer’s decision was fair and reasonable.

Fair procedures were not followed by the Respondent Company. The Respondent Company provided no basis nor reason as to why the Complainant was selected for redundancy.  There was no redundancy consultation process. No pool of workers of similar work positions were considered for redundancy. 

The decision to terminate her employment was arbitrary and no proper reasons were given to the Complainant for said termination. No process was followed in taking the decision. The Respondent continued to engage with the Complainant after the final employment date of 21st or 22nd December. 

It is disputed between the parties as to the authenticity of the documents, and the date of creation of the documents and letters submitted to the Complainant on behalf of the Respondent. No documentary evidence regarding the dismissal has been submitted, and there was no clear justification for why the Complainant was selected for termination. 

If the Respondent company wished to relieve the Complainant of her position, fair procedures should have been followed. It appears that actions were taken by the Respondent Company retrospectively to mend the errors in dismissing the Complainant. 

 Further, and in the alternative, the Respondent Company provided no agreed procedures for selecting an employee for redundancy should this termination be characterised as a redundancy. No constructive engagement between the employee and employer is evident and the manner in which the Complainants employment was terminated did not meet a standard of reasonableness. 

The Complainant has not, nor has she had sight of a company handbook in the course of her employment with the Respondent Company. References to a Company Handbook occur in the Contract of Employment but this was not provided to the Complainant. 

In any event, if the Company handbook has procedures for termination in place, these were not followed. 

In Ray Walsh -v- Econom Digital Finance Ltd ADJ-00029093, Adjudicator Catherine Byrne found in favour of the Complainant. The adjudicator noted that, in a redundancy context, where there is no possibility of an alternative job, the process of consultation usually addresses the terms on offer. Having reviewed the caselaw, Barton v Newsfast Freight, Mulligan v J2 Global,  O’Kelly v Xsil and Fennell v Resource Facilities, the adjudicator stated that engagement with the employee who is the target of redundancy is the cornerstone of reasonable treatment.  The adjudicator found that  “it was disrespectful to the Complainant to invite him to a meeting with no forewarning of the subject-matter, and to announce that his job was redundant.  No credible explanation has been given for the decision of the managers not to engage with the Complainant to identify a suitable alternative role, or to extend his notice period so that he could find another job”. In that decision, the respondent was to pay the Complainant €120,000 by way of compensation.  

Redundancy does not provide a waiver from the employers requirement to comply with the Unfair Dismissals Acts 1977-2015. Section 6(1) of the Unfair Dismissals Acts (“the UD Act”) provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The burden of proof rests with the respondent to provide evidence of the “substantial ground justifying the dismissal” of the Complainant. Section 6(4)(c) of the Unfair Dismissals Act recognises the right of an employer to dismiss an employee due to redundancy: 

“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from…

(c) the redundancy of the employee.”

Section 6(3) Unfair Dismissals Act sets out that selecting an employee for redundancy must be made on the basis of fairness and to adhere to an agreed procedure or a code of practice regarding dismissals. Section 6(7) states: 

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and  

“(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

Section 7(2) Redundancy Payments Acts 1967 to 2022 states: 

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a)              the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)              the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)               the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)              the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)              the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained…”

(f)               Section 7(5) of the Acts provides:

“In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) . . . .”

In Williams –v- Comp Air (1982) 1 ICR 156 when the issue of fair selection was being considered, the following principles were noted governing how reasonable employers should act:  

“The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment”. 

In Mulligan –v- J2 Global (Ireland) Ltd UD/993/2009 regarding redundancy, the tribunal stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”

In JVC Europe v Panasi (2011) IEHC 279 it was stated by the Court that:

“It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason.”

 The Complainant respectfully submits that the caselaw shows the principles set down for redundancy, and that her dismissal may have been a redundancy, without adherence to the law. 

 CA-00063657-016

Penalisation

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act, 2006.

CA-00063657-017

Penalisation

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014.

CA-00063657-018

Protected Disclosures / Whistleblowing

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

CA-00063657-019    

Hours of Work

The Complainant did not receive paid holiday or annual leave entitlements. The amount of annual an employee is entitled to is the greater of:- 

(a)             4 working weeks in a leave year in which he or she works at least 1,365 hours

(unless it is a leave year in which he or she changes employment),

(b)            one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or 

(c)             8% of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)

Further submissions were made in relation to the following issues;

 Period of limitation in respect of claims made by the Complainant under the Organisation of Working Time Act 1997 and under the Payment of Wages Act 1991.

Limitation under the Organisation of Working Time Act 1997 and under the Payment of WagesAct 1991

The period of limitation in respect of claims under the relevant provisions of the above Acts are as set out under Section 41 of the Workplace Relations Act 2015. In particular Section 41

(6) of the Act provides that 

(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.

 In this case the date of the complaint was the 25th of May 2024 and therefore insofar as Section 41 (6) applies, the Complainant could only pursue recovery in relation to contraventions occurring on or after the 25th of November 2023. As her employment terminated on the 29th of January 2024 the period in respect of which recovery might be sought would be limited to just over two months if the applicable period of limitation is 6 months prior to the complaint.

 The time limits stipulated under Section 41 (6) are qualified under Section 41 (8) which goes on to provide that 

 (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.

 For the reasons hereinafter set forth the Complainant shall contend that her failure to present the complaint within the stipulated 6 months was due to reasonable cause. In the premises it is submitted that it would be just and proper that the Adjudicating Officer be at liberty in this case to direct recovery in respect of contraventions dating back to the 25th of May 2023.

 In the leading textbook Bolger, Bruton and Kimber, Employment Equality Law, 2nd Ed. (Dublin: Round Hall, 2022), there is extensive analysis at paras 16-103 to 16-110 of the “reasonable cause” test in the context of employment equality disputes. 

There are a number of statutory provisions dealing with the time limits for the making of complaints under employment legislation to the Workplace Relations Commission which generally in the first instance require the complaint to be made within 6 months but then go on to provide that that time limit of 6 months can be extended to a maximum of 12 months by the Adjudicator. Prior to the Workplace Relations Act 2015 such legislation frequently required that the 6 month time limit could be extended to 12 months “in exceptional circumstances”.

Section 6 (4) of the Payment of Wages Act 1991 as originally enacted was one such example.  

Section 41 (8) of the 2015 Act has replaced the “exceptional circumstances” test with a test of whether  “the failure to present the complaint or refer the dispute within that period was due to reasonable cause”. The test under the 2015 Act is a significantly less exacting test for a Claimant seeking the extension of time that the previous “exceptional circumstances” test and must be seen as an implicit recognition by the legislature that the “exceptional circumstances” test was capable of operating unduly harshly or unfairly towards Complainants. Thus in the case of Byrne v P.J. Quigley Ltd UD 762/1994 “exceptional circumstances” was held to amount to “strong words” and meant something “out of the ordinary”. By contrast in the case of HSE v Rauf FTD 0817 the Labour Court described the “reasonable cause” requirement as a “modest” and “not an unduly onerous one”.

 To establish that there are “reasonable grounds” for seeking the extension of time, the applicant must establish reasons for the delay in referring the complaint, that such reasons were the excuse or operative reason for not referring the complaint within the six-month limit, and that the reason proffered affords an excuse for the delay. (See Department of Finance v IMPACT [2005] E.L.R. 6). In that case in considering the standard to be applied, the Labour Court went on to say that :

 “The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.

 While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”   

Bolger, Bruton and Kimber, at para. 16.107 go on to give examples of some factors that may be relevant to the granting of an extension of time some of which are relevant in the present case. Thus; 

One of the other factors relevant to whether an extension of time should be granted is whether the claimant was in receipt of legal advice prior to the six-month time period expiring. In granting an extension for “reasonable cause”, the Labour Court in Cementation Skanska v A Worker DWT0425 relied on the fact that the claimant did not have the benefit of independent professional advice in relation to his rights or on the procedures for making a complaint under the Act. 

………………

The Labour Court has also taken a realistic approach when dealing with applications for extension of time for non-national employees, acknowledging that such employees are less likely to be aware of their rights and of Irish employment law. (Singh & Singh Ltd v Guatam, Singh and Singh DWT0544). 

Applying the above principles to the facts of the present case it is submitted that there would be ample justification for the Adjudicator to hold that any failure of the Complainant to present the complaint or refer the dispute within that period was due to reasonable cause and that the Adjudicator would also be amply justified in extending time for the Complainant to make her complaint by 6 months. 

In this case the Complainant was in a particularly vulnerable and precarious position vis a vis her employer the Respondent. She was a non-national and she had been granted her employment permit and visa on the basis that she was a “skilled worker”. She had been granted a Critical Skills Employment permit as a Business Sales Executive. Her right to remain in this country was entirely dependent upon her employment as a skilled worker and if for good reason, for bad reason or even for no reason at all, the Respondent were minded to dismiss the Complainant from her employment as a skilled worker, the Complainant would also lose the right to remain in the State. In these circumstances whilst the Complainant was very much aggrieved by the blatant breaches by the Respondent of her contract of employment with regard to pay etc. she held an entirely reasonable apprehension that she was in no position to complain or to pursue the point with the Respondent. The Respondent himself was well aware of the Complainant’s vulnerable and precarious position, and this was precisely why he felt emboldened to blatantly disregard the Complainant’s contract of employment with absolute impunity. The evidence of the Complainant was that Pradeep (the Complainant’s boss) explicitly told her that he could cancel her visa. It was only when, following her dismissal by the Respondent, she obtained alternative qualifying employment that she was in a position to raise the complaints against the Respondent that are subject matter of these proceedings. 

Furthermore it is submitted that regard might also be had to the fact that the Complainant as a non-national would not have been aware of her rights under Irish employment law and would not have been aware as to whet remedies might have been open to her. She did not have legal advice in relation to her rights whilst employed by the Respondent. She did ultimately seek and obtain independent legal advice but only after her right to remain in this country had been put on a secure footing by the obtaining of alternative qualifying employment.  

Having regard to the foregoing it is respectfully submitted that the Adjudicator would be amply justified in applying Section 41 (8) of the 2015 Act so as to entertain and adjudicating upon the complaints in question dating back to the 25th of May 2013.

2. Loss of earnings 29/01/2024 – 29/02/ 2024 

4 weeks x €573.63 net

Total: €2294.52

3. Loss of earnings due to non-payment of bank holiday pay

No payment received for the following public holidays: 6th of February 2023, 17th of March 2023, 10th April 2023, 1st May 2023, 5th June 2023, 7th August 2023, 30th October 2023, 25th

December 2023, 26th December 2023, 1st January 2024.

10 days x €81.41 net per day

Total : €814.10

 Loss due to underpayment of wages.

Workplace Relation Commission inspector obtained payslips from employer as part of investigation. The payslips include the pay period 14-08-2023 – 29/01/2024. The total net amount of these payslips amount to €26,551.22 

The claimant only received the sum of €17,636.00 during this pay period.

Amount should have been received [net]: €26,031.21

Amount received [net]: - €17,990.00

Total loss: €8915.22.21 – see claimants calculations at pages 185 - 186

Loss due to underpayment of holiday pay

Entitlement 23 working days as per contract

23 days x €81.41 net per day

Total: €1,872.43 less €600.00 cash received from employer

Total €1,272.43

 Loss due to reduced wage in new employment 29/02/24 – 31/12/2024 (year end)

Complainant mitigated her loss and secured alternative employment on the 29/02/24 on a lower wage (€13.00 per hour gross). 

43 weeks and 5 days left in 2024 when she mitigated her losses and commenced new employment. 

When the Complainant finished working with the Respondent she should have been receiving €573.63 net  .

The Complainants weekly wage at her new employer fluctuated depending on how many hours worked and typed of hours worked (e.g Sunday/Bank Holiday)

Based on the sample 25 payslips on average the Complainant earned on average €519.30 euro. 

Net Total of sample 25 payslips = €12,982.50

Average Net Pay per payslip : €12,982.50/25 =  €519.30  

Total Net Average Weekly loss: €573.63 - €519.30 = €54.33 average weekly loss 

Total 2024 Losses = Total Average weekly loss x Number of working weeks left in 2024 

Total 2024 Losses - €54.33 x 43.71 weeks

Total 2024 Net Loss = €2,374,76 

Loss of wages for non-payment of Sunday pay

To be determined.

LOSSES SUMMARY 

1.         Loss caused by change of directors and change of location €2,898.15

2.         Loss of earnings 29/01/2024 – 29//02/ 2024 €2,294.52 

3.         Bank Holiday pay €814.10

4.         Underpayment of wages €8041.21

5.         Balance of holiday pay owed €1,272.43

6.         Loss due to reduced wage 2024 2,374,76

7.         Sunday pay- -TBD

8.         Unfair Dismissal – TBD

9.         Penalisation - TBD

The Respondent was initially represented by an Advisory Firm but a Director of the Respondent represented the Respondent.. The Respondent was represented by a Director  of the firm, Mr. Pardeep Hooda. The Respondent made an initial written submission in March 2025 as set out below. In addition the submission contained details of the Employment contract, payslips, the Complainants Visa and messages.

According to Complainant:” In the initial piece of this process, they shared all the relevant payslips for Amandeep Kaur to the WRC Inspector. The following was their response to the claims:.

*PART LOSSES: CHANGE OF LOCATION AND DIRECTOR. My company does not provide accommodation and food to any of our staff. When I was in the middle of the changeover of Concored Ltd I was not told about Amandeep Kaur’s employment. Her employment was in OOLA GALA Shop at that time. When I took over CONCORED LIMITED there was 3 shop under this company, but GALA shop in OOLA , county LIMERICK were not taken over by this company. When she contacted me about a possible start date I was unaware of any of her proposed employment details. This came to a point whereby I offered her a position in one of our stores in Co. Kildare to remedy getting her to commence work. This position was offered numerous times and Amandeep Kaur constantly refused to commit either way. This being to find accommodation in Co. Kildare or commute for work. This back and forth went on for 5 weeks.

 *LOSS OF EARNINGS: Throughout these 5 weeks Amandeep Kaur refused to commit or take up the post in Co. Kildare.

*LOSS OF EARNING DUE NON-BANK HOLIDAY PAY: Amandeep Kaur was on a weekly salary. If she worked on bank holiday day she would have received a day off in lieu. (WE ARE HAPPY TO ADDRESS ANY UNDERPAYMENT)

*LOSS DUE TO UNDER PAYMENT OF WAGES: Under this section there is a miscalculation on Amandeep Kaur’s side between 14-8.2024 - 29.1.2024. I have no case to answer here. I am happy to share all the payslips again to the solicitor and or the WRC Inspector.

 *LOSS UNDER PAYMENT OF HOLIDAY PAY: Amandeep Kaur booked a 2-week holiday because she was travelling back to India. In fact she returned back only after 5 weeks in India, Amandeep Kaur never informed me of her intention to stay an additional 3 weeks. ( SHE WAS PAID ALL 5 WEEKS WHILE ON HOLIDAY , PAYSLIPS CAN BE SHARED)

*LOSS OF WAGES FOR NON PAYMENT OF SUNDAY PAY : We can address any pay for Sunday allowance if she can prove she worked some Sunday shift which was not rostered in the first instance and a swap occurred.

*NOTICE Amandeep Kaur received over 4 weeks advance notice regarding the ending of her employment. At this point she agreed.

The Respondent made a further submission in  September 2025 as follows;

ADJUDICATION FILE REF : ADJ-00052028 ACCORDING TO ONLINE HEARING 12.6.2025 FIRST OF ALL IN INITIAL I HAVE SUBMITTED PAYSLIPS AND CONTRACT AND FEW OTHER DOCUMENT AND SUMMARY OF THIS CASE STEP BY STEP. I CAN NOT BELIEVE I HAVE TO SUBMIT THIS PROOF WHEN EVERYTHING WAS SORTED WITH BOTH PARTIES. ACCORDING HER COMPLAINT SHE COMPLAINED 25.5.2024.SHE LEFT JOB END OF JANUARY 29.1.20242024. I DO NOT UNDERSTAND WHERE AND WHY SHE DID NOT COMPLAIN BEFORE IF SHE WAS NOT ENOUGH PAID, HOLIDAY PAY, CONTRACT, BREAK PERIOD, BANK HOLIDAY PAY ETC ETC.... DUE TO COMPANY CHANGEOVER I HAD NO CLUE WHO IS SHE , AND WHAT SHE DO , I HAD NOTHING TO DO WITH OTHER BUSINESS FROM WHERE HER WORK PERMIT WAS ISSUED FROM HER LAST EMPLOYER AMANDEEP GILL. I NEVER RUN OOLA SHOP IN LIMERICK WHERE HER ACTUALLY PERMIT WAS ISSUED. FIRST OF ALL I HAD 3 SHOPS UNDER THIS COMPANY . NAAS, CLONMEL , ATHGARVAN. WHEN SHE CONTACTED ME EARLY WEEK OF FEBRUARY 2023 , SHE SAID I HAVE PERMIT AND WHEN I CAN START JOB. I HAD NO CLUE WHO IS SHE AND WHAT SHE DOES TO START JOB. I CONTACTED AMANDEEP GILL ( HER PERMIT WAS APPLY BY HIM NOT PARDEEP HOODA) I SPOKE TO HER ON CALL AND THEN I SPOKE TO AMANDEEP GILL ABOUT AMANDEEP WHATS THE STORY OF HER EMPLOYMENT PERMIT. IN INITIAL CALL , SPOKE TO EACH OTHER. AND I ASKED HER TO START IN ATHGARVAN SHOP AS BUSINESS SALES EXECUTIVE ROLL. SHE WAS LIVING IN LIMERICK AND IN THE START SHE CAN NOT MOVE TO KILDARE OR NEAR PLACE OF WORK BECAUSE OF SHE CAN NOT FIND ACCOMMODATION. (HER ACTUAL PERMIT DATE WAS 31.1.2023 BUT SHE IS CLAIMING FROM 17.10.2022, BUT SHE STARTED WORK MID OF SECOND WORK AROUND 10.3.2023 ALL TOGETHER SHE WORKED WITH THIS COMPANY AROUND 10 MONTHS PERIOD OF TIME. SHE STARTED 10.3.2023-29.1.2024. DURING THIS PERIOD OF TIME SHE WAS ON ROASTER AS WELL AS OTHER DUTIES. SHE WAS PAID WEEKLY WITH CASH , NOT BANK TRANSFER WITH PAYSLIP. SHE WORKED AROUND 47 WEEKS. WEEKLY PAYSLIP WILL BE PROVIDED WEEK WISE INCLUDING 5 WEEKS HOLIDAY PAY. SHE WAS INFORMED VERBALLY TWICE AND THEN WRITTEN NOTICE , WHICH WAS GIVEN BY CIARA MANAGER , 4 WEEKS NOTICE PERIOD WAS ACCEPTED AMANDEEP KAUR AND SHE HAPPILY LEFT JOB 29.1.2024. I UNDERSTAND SHE WAS ON ROASTER FOLLOWING WEEK , BUT HER NAME WAS THERE BY MISTAKE, PLEASE FIND SCREENSHOT AMANDEEP KAUR SENT TEXT TO CIARA TO PROVE THIS LIKE SHE KNEW THIS IS HER LAST WEEK ON IN THIS SHOP. AS SHE SAID ON ONLINE HEARING THAT DAY SHE STARTED HUNTING FOR ANOTHER JOB OR PERMIT IN NOVEMBER 2023 IN ADVANCED. HER CONTRACT WAS TERMINATED ON HER PERFORMANCE. 4 WEEKS NOTICE WAS GIVEN TO AMANDEEP KAUR AND ACCEPTED AND MOVE ON. SHE STARTED WORKED OR HOLD ANOTHER PERMIT STRAIGHT AWAY AS SHE SAID ON ONLINE HEARING 12.6.2025.AND SHE WAS DOING 2 PART TIME JOB IN LIMERICK IN SUPERMAC OR NURSING HOME, AFTER SHE LEFT CONCORED COMPANY.I THINK SHE SAID SHE STARED 2 JOB AFTER 10 DAYS OR 2 WEEKS. WHEN SHE LEFT JOB WITH US AND MOVED BACK TO LIMERICK AFTER 29.1.2024 HER LAST DAY. THEM HANDWRITTEN NOTE OR AMOUNT , DO NOT KNOW WHAT WAY SHE IS CALCULATING OR MAKING THIS AMOUNT WHEN IS ON SALARY BASIS AND PAID WEEKLY. IN MEETING 12.6.2025 HER SOLICITOR SAID I LET HER GO BECAUSE I HAD WRC INSPECTION AND I WAS SCARED. THAT WAS A NORMAL INSPECTION ITS BEEN DONE BEFORE AS WELL WITH OTHER COMPANIES , CHECKING EMPLOYMENT RIGHT OR DETAILS ETC. EVERYTHING WAS SENT TO WRC INSPECTOR WHATEVER HE REQUESTED THAT TIME. I WAS SCARED TO INSPECTION ...WHY ? I WAS NOT DOING ANYTHING WRONG. EVERYTHING WAS SENT TO HIM WHATEVER HE ASKED FOR AND HE WAS HAPPY , NO MORE QUESTIONS HE ASKED AFTER SENDING ALL DETAILS. HE JUST ASKED ME TO INTERVIEW 2 OF MY STAFF AND HE DID IN SHOP. AFTER THAT THERE WAS NO QUERY CAME TO ME. WRC INSPECTOR INTERVIEWS AMANDEEP ON CALL I THINK , HE HAD TIME TO COMPLAIN THAT TIME AGAINST ME LIKE SHE IS NOT GETTING PAID THIS AND THAT. AND WOULD HAVE RAISE QUESTIONS AGAINST ME. WHY SHE TOOK 6-7 MONTHS TO RAISE THIS TYPES OF ALLEGATION.

SUNDAY PREMIUM : PLEASE SUBMIT HOW MANY HOURS SHE WORKED IN LAST 6 MONTH, SHE WAS ON CONTRACT 40 HOURS PER WEEK, IF I STILL OWE FOR SUNDAY PREMIUM PLEASE SUBMIT. I'M OKAY TO PAY.

BANK HOLIDAY : PLEASE SUBMIT , IF SHE WORKED ON ANY. PLEASE FIND AN ATTACHED SOME SCREENSHOT AND OTHER SUMMARY TO CLEAR THE POINT. HOPE THEM WILL HELP TO CLARIFY THE POINT

Overview

The gathering of information related to the specifics of this case was extremely difficult and took some time. The parties were at odds on many issues and in some cases information was very difficult to assess based on the raw data supplied to finalise a considered review. Data gathered by the Complainant was submitted by the Complainant (copies of her log books, copies of envelopes, etc). The Respondent supplied no data re hours or days worked. Following  the first Hearing the parties made a further submission with regard to issues that arose at that Hearing in an attempt to clarify some queries by the Adjudicator as part of his investigative role.

The Complainant is an Indian national and was hired as a Business Sales Executive.  in practice her duties were to assist in the retail service in a shop, inter alia stacking shelves, assisting customers and purchasers as a teller at the shop front. She was hired under a specific purpose visa as a critical skills employee, which granted her the right to work for the Respondent in Ireland. Whether the Complainant worked in a critical skills role was not for assessment by the Adjudicator. The Complainant remains in Ireland post the termination of her employment in other employment roles but with reduced income. Some of the authenticity of the Respondent documents were questioned by the Complainant in her evidence.

The Respondent runs three small supermarkets in Ireland and stated he was unaware of the Complainant until he became involved in running the business she was engaged in.

I am obliged to make decisions on all the complaints presented and with the evidence and information supplied, below are my Decisions at determining the validity of each complaint and the appropriate remedy.

Extension of time: request

The Complainant Representative requested I extend the time period for consideration of losses from 6 to 12 months. The employment ceased on 27/1/24 and the complaint was submitted within the 6 month timeframe allowed by the Act..  I have reviewed the grounds submitted by the Complainant representative for an extension of time and conclude that the Complainant was a Business Studies graduate, hired on Critical Skills Visa and a very reasonable salary and had been in Ireland some time before the termination of her employment. While it may have taken the Complainant a while to engage legal advice I do not consider this as a sufficient justification to grant an extension of time. The Request is not granted.   The cognisable time period for the complaints under the Act is 6 months commencing on November 26th 2023 until the date of submission of the complaint, May 25th 2024. In practice the cognisable period for specific work time issues is from November 26th 2023 to the date of termination, January 27 2024.

The Employment history;

The Respondent Representative denied having employed the Complainant from October 17th 2022 and only agreed that her employment commenced with the Respondent in March 10th 2023. The Complainant was issued with a Work permit as a Critical Skills Business Sales Executive valid from 30/1/2023 to 29/1/2025 under the name of the Respondent. The Respondent gave the Complainant a contract of employment, under its name to commence on October 17th 2022.  This contract was questioned by the Complainant. Therefore, the Complainant has always worked for the named Respondent.

In Dec 2023 the Respondent received a query from the Department of Enterprise Trade and Employment concerning the job the Complainant was doing and questioning the Visa.

Information was provided to the Adjudicator in the format that the Complainant had collected information (a log book) about her work times and days. She was paid in cash (copies of some envelopes supplied) in an envelope but subsequently received payslips. The Complainant queried the reliability and timing  of some of the payslips and documents supplied by the Respondent.

Findings

The Complainant submitted that she was not paid 1272 in holiday pay due. She submitted little detail to support this claim. The Respondent alleged that the Complainant booked a 2-week holiday because she was travelling back to India and only returned after 5 weeks in India and was paid for this time. Like much of this case the issue was disputed between the parties with no clear evidence either way. Being paid for 5 weeks would equate to more than a full years holiday entitlement and being paid for the 3 extra weeks would equate to 2019 Euros. In the absence of any factual evidence from either side I find that, on balance, I prefer the evidence of the Complainant but only partially, and award her 500 Euros for non payment of holiday pay..

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find the complaint well founded and award the Complainant 500 Euros.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Unfair Dismissal