Complainant

Respondent

Parties

Ivana  Borgudan

PJB Management Limited T/A Billsave

Representatives

Self-Represented

Self-Represented

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-00067095-001

01/11/2024

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

CA-00067095-002

01/11/2024

This matter came before the Workplace Relations Commission dated 01/11/2024.  Accordingly, the cognisable period for this complaint is 02/05/2024 – 01/11/2024.  The Complainant alleges contraventions by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 28/08/2025. 

The Complainant is a former employee of the Respondent.  The Complainant was employed by the Respondent as an Operations Manager at all material times.  The Complainant commenced her employment with the Respondent on 24/10/2022 such employment terminating by reason of resignation with immediate effect on 16/05/2024. 

The within complaints relate to an alleged unlawful deduction from wages on 31/05/2024 in the amount of €1392.06 and an alleged unlawful deduction on 28/12/2023 in the amount of €500.00. 

The Complainant filed a written submission together with relevant documentation in support of her claim. 

CA-00067095-001

Specific detail as set out in WRC complaint form

The employer never paid my half months wages for May and the date of the alleged deduction is 31/05/2024. 

CA-00067095-002

The Complainant has stated in the WRC complaint form that the date of this alleged deduction is 28/12/2023 and it relates to the non-payment of a bonus.    

CA-00067095-001

The Respondent concedes that technically yes it was an unlawful deduction and the reason for withholding payment was that the Complainant was working against his business.

CA-00067095-002

The Respondent submits the Complainant did not qualify for the bonus to which she refers and he submits the Complainant received payment for any bonus she had earned.  The Respondent submits  that this is a spurious claim. 

CA-00067095-001

This is a complaint pursuant to the Payment of Wages Act, 1991. 

In conducting my investigation, I have reviewed all relevant submissions and supporting documentation presented to me.  I have carefully considered the oral evidence adduced at hearing.    I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters.

The Relevant Law

Section 1 of the Payment of Wages Act, 1991 (“the 1991 Act”) provides the following definition of wages:

"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:

Section 5 of the 1991 Act sets out:

5. Regulation of certain deductions made and payments received by employers

(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.

Section 5(6) of the 1991 Act addresses the circumstances in which wages which are properly payable are not paid:

(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.

The matter for me to decide is whether the Respondent has properly paid the Complainant in accordance with section 5 of the 1991 Act. 

In the case of Marek Balans v. Tesco Ireland Limited [2020] IEHC 55 the High Court made it clear that the WRC, when considering a complaint under the 1991 Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made. 

If it is established that a deduction within the meaning of the Act had been made, the WRC would then consider whether that deduction was lawful.  The 1991 Act does not define the concept of “properly payable” and I must reach a conclusion on this by reference to objective criteria and with due deference to previous findings of the Labour Court or other authorities.

The Relevant Facts

The Complainant alleges the Respondent withheld wages in the amount of €1392.06.  I note there is no dispute that the monies were not paid albeit the Respondent seeks to rely on his assertion that the Complainant was acting against the business and for that reason he did not pay her.  

Notwithstanding, this complaint as presented falls to be determined under the Payment of Wages Act, 1991 and it is through the lens of that legislation this complaint must be investigated.   

I am satisfied the sum of €1392.06 is properly payable to the Complainant in circumstances where the entitlement arises because she worked for the Respondent up to 16 May 2024 and this is a fact not in dispute.    

I am satisfied the monies owing are properly payable to the Complainant.  Accordingly, I find this complaint to be well-founded. 

I direct the Respondent to pay to the Complainant the amount of €1392.06 within 42 days from the date of this decision.

CA-00067095-002

I note the Complainant filed her complaint with the WRC on 01/11/2024.  Accordingly, the cognisable period for this complaint is 02/05/2024 to 01/11/2024. 

I note the date of the alleged deduction in the amount of €500 is 28/12/2023 a set out by the Complainant in her WRC complaint form. 

I note the WRC, on receipt of her complaint, set out as follows in correspondence to the Complainant: 

In relation to Specific Complaint No.  CA-00067095-002

“The complaints/disputesappear to have been presented after the expiration of the statutory timeline of six months from the time of the contravention.

However, an Adjudication Officer has the power to extend this time limit to a maximum of 12 months, if the complainant can demonstrate that the failure to comply with the 6-month time limit occurred as a result of reasonable cause.

If you consider that your complaint was presented within the application time limit or that the failure to present the complaint within 6 months was due to reasonable cause, you can submit a response within 14 days, outlining the reasons why you consider the failure to submit your complaint within the statutory timeframe amounted to reasonable cause. This will be considered by an Adjudication Officer as a preliminary issue. Otherwise, the matter may be considered to be out of time and will not progress to an Adjudication hearing.”

I note the Complainant by way of response submitted as follow:

“The reason I didn’t report it sooner was that I tried to resolve it with the management of PJB Management Ltd, however I couldn’t have predicted the series of events that led to my resignation.”   

Section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“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.” 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six 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 discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay. 

The established test for deciding if an extension of time should be granted for “reasonable cause” is set out in the Labour Court determination in the case of Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] as follows:

“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 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 would have initiated the claim in time.  In the context in which the expression reasonable appears 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.”

For an explanation of reasonable cause to succeed –

(i)                A complainant must explain the delay and afford an excuse for the delay.

(ii)              The explanation must be reasonable.

(iii)             There must be an objective standard applied to the circumstances of the case.

(iv)             There must be a causal link between the circumstances and the delay.

(v)               A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that reason relied upon provides a justifiable excuse for the actual delay. 

I note the Complainant in her email to the WRC of 20 November 2024 submits she delayed filing her complaint as she had tried to resolve it with management.  The Complainant did little to advance this argument at hearing due in no small part to the fact that much of what was ventilated by the parties at hearing related to the circumstances of the Complainant’s departure from the Respondent company none of which has any relevance to the specific complaints as presented by the Complainant pursuant to the 1991 Act. 

Notwithstanding, as part of my statutory duty to make all relevant inquiries into this complaint and for completeness and the avoidance of any doubt, I will address the matter of reasonable cause in the context of an application for an extension of time. 

In this I am guided by the conclusions of the Labour Court in the case of Dublin City Council v. Skelly [DWT212] where the Court held that as follows: 

“…a claimant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay.”

In applying the reasoning of the Labour Court as set out above I am satisfied that the Complainant cannot circumvent the time limits because she was trying to resolve the matter with management.  There was nothing to prevent the Complainant from filing a complaint with the WRC within the time limits which could have subsequently been withdrawn by her if matters had indeed resolved with management. 

While the reasons relied upon by the Complainant may explain the delay, I am unable to find they excuse the delay.  The Complainant has not met the standard of reasonable cause set out in the well-established test in the Cementation case of which I am mindful.  I am satisfied that nothing has been advanced by the Complainant that both explains and excuses the delay. 

Applying Cementation, I find the reason put forward by the Complainant does not explain or excuse the delay; it is not a reasonable explanation; and it does not persuade me to grant an extension of time.

Accordingly, I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time.  

For completeness, I note the Complainant at hearing alleged the non-payment of the bonus to which she claims she is entitled continued up until she terminated her employment which may have fallen within the cognisable period. 

However, the Complainant was unable to particularise her complaint in this regard or to provide any specificity in relation to unlawful deductions which may have arisen during the cognisable period and upon inquiry the Complaint submitted she could not remember. 

Accordingly, the Complainant was unable to demonstrate there had been an unlawful deduction under the 1991 Act.

Therefore, I find the complaint CA-00067095-002 as presented to be not well-founded. 

CA-00067095-001

For the reasons set out above I decide this complaint is well-founded.  I direct the Respondent to pay to the Complainant the amount of €1392.06 within 42 days from the date of this decision.

CA-00067095-002

For the reasons set out above I decide this complaint is not well-founded. 

Properly payable; failure to particularise;