Complainant

Respondent

Parties

Mark  Cafferkey

Cpl Solutions Ltd

Representatives

Mark Comerford 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-00061350-001

01/02/2024

The Complainant was employed by the Respondent from 9th August 2021 until 23rd June 2022.

The Complainant began employment with the client on 7th October 2019. At the time, he was at Point 1 of the public sector scale, earning a salary of €43,046. He joined the Respondent on 9th of August 2021 and his salary was €46,701.

By October 2021, with two years of service, he should have moved to Point 3 on the scale for his third year. However, this progression did not occur. The Respondent only applied 1% increase to his salary to €47,201. According to the public sector scale, his salary should have been €49,168. The difference between what the Complainant received and what he should have received pro-rata is €1,803.08 excluding taxes.

The Complainants annual leave is 29 days. However, this was not confirmed in his terms of employment. He initially reported he had taken three days of annual leave in 2021. He found out he had taken four days off in an email of 22nd December 2021 which were 6th of September, 29th, 30th, 31st of December 2021 when the offices were closed.

On 28th January 2022, it was confirmed the Complainant had a total of 69.19 hours of leave carried over from 2021. Given a 7.5-hour workday (37 hours / 5 days), this is equivalent to 9.4 days. Under the Haddington Road Agreement Hours and Updated Flexible Working Arrangements for Civil Servants, from July 2022 the public sector switched to 35-hour weeks. With a 7-hour workday, the remaining leave of 69.19 hours is equivalent to 9.88 days. The Complainant seeks ten days of holiday leave unpaid.

The Complainant ceased employment effective from 30 June 2022 to commence permanent employment with the Client. He did not forward his complaint to the WRC until 1 February 2024, the Respondent respectfully submits that the Adjudication Officer does not have jurisdiction to hear this complaint. It is respectfully submitted that the matter is statute- barred.

Preliminary Issue

The Complainant’s claim is manifestly out of time.

The claim was received by the WRC on 01 February 2024, meaning that the cognisable time period for this complaint is from 2 August 2023 to 1 February 2024, or 2 February 2023 to 1 February 2024 if the Complainant can demonstrate reasonable cause to the satisfaction of an Adjudication Officer. Section 41(6) of the Workplace Relations Act, 2015 provides,

“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”.

Whilst Section 41(8) of the Workplace Relations Act 2015 provides that the six-month time limit should apply and that it can only be extended due to ‘’reasonable cause’’ it is submitted that as the complaint which was submitted approximately 20 months after the Complainant ceased employment with the Respondent, is manifestly out of time and is statute-barred.

In Sheehy v Most Reverend James Moriarty the Tribunal held

‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing’’ where ‘’the claims were not instituted within the 3 time periods set out in the legislation’’.

The Respondent respectfully requests that a decision be reached on this preliminary matter before proceeding to consider the substantive and relies on the decision in Bus Eireann v SIPTU PTD048/2004, when the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’ referencing the judgement of O’Higgins CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242.

The Respondent relies on the decision of the EAT in Byrne v Quigley where the Tribunal found  ignorance of the law was not an excuse. The Respondent respectfully submits that the Adjudication Officer assigned to hear this case has no jurisdiction to do so.

I heard and considered the submissions and evidence of the parties.

The Complainant ceased employment with the Respondent on 30th June 2022. However, his complaint form seeking loss of wages and holidays was not received by the Workplace Relations Commission until 1st February 2024.

S41 of the Workplace Relations Act 2015 provides;

(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 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.

The complaint was submitted outside the cognisable period for submissions of complaints. I do not have jurisdiction to hear the complaint as it is statute-barred.

I do not have jurisdiction to hear the complaint.