ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040051
Parties:
| Complainant | Respondent |
Parties | Jaco Albuquerque | Kepak Limited |
Representatives | In person | Brian Hallissey B.L. instructed by Caulstown Solicitors |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00050548-001 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00050548-002 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-003 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of | CA-00050548-004 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-005 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission SI No. 494 of 2004 and Clauses 6 of the EC (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of 200 | CA-00050548-006 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-007 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006 | CA-00050548-008 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-009 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-010 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-011 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-012 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-013 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-014 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-015 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00050548-016 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00050548-017 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00050548-018 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00050548-019 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946 | CA-00050548-020 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00050548-021 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00050548-022 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00050548-023 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00050548-024 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00050548-025 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00050548-026 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00050548-027 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00050548-028 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00050548-029 | 09/05/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00050548-039 | 09/05/2022 |
Date of Adjudication Hearing: 25/09/2025
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 – 2014, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant was employed by the respondent from on or about 28th September 2016 until 17th September 2021. The complainant submitted 30 complaints to the Workplace Relations Commission (WRC) on 9th May 2022.
The matter first came on for hearing on 19th September 2024. On that occasion, the complainant was unrepresented and attended the online adjudication hearing with a friend who was interpreting for him. The hearing was adjourned to facilitate a WRC appointed Interpreter and given the number of complaints submitted, the matter was to be reconvened as an in person hearing in Cork. By the time the hearing was reconvened, the complainant had relocated to Brazil, and the hearing format was changed and heard remotely on 25th September 2025. |
Respondent’s Preliminary point: Timing of the complaints
The respondent’s representative contends that the entirety of the complaints are out of time. The respondent’s position is that the complainant’s employment ended on or about the 17th September 2021 and the complaints were not submitted to the WRC until 9th May 2022. The respondent stated that this is outside the statutory six-month period for the referral of complaints to the WRC. The respondent, noting the complainant’s assertion that he was unaware of the statutory time limit for the referral of the complaints stated that this was not a sufficient reason to grant an extension of time. The respondent cited Labour Court Determination No: DWT0338 iCementation Skanska v Carroll in support of its position that the complainant has not demonstrated reasonable cause for the delay in submitting his complaints and should not be granted an extension of time. Supplemental submissions The respondent submitted detailed supplemental submissions on the issue of whether the annual leave claim was in time. The respondent’s position on this issue is that the last date that a course of action could have arisen in respect of this claim was on the date of the complainant’s resignation and on that basis, the complaint submitted on 9th May 2022 was out of time. Notwithstanding the point on the time limit, the respondent further submitted that the complainant had exceeded his annual leave entitlements prior to his resignation and in accordance with the complainant’s contract of employment, this resulted in a deduction from his final payslip to address the issue. |
Summary of Complainant’s Case:
The complainant stated that he submitted multiple complaints as he was unaware how to submit the complaints using the complaint form. This was because of his inability to speak English at a proficient level as well as being inexperienced in referring such complaints. The complainant stated through the Interpreter that he was aware his complaints were “late” but that the real issue was a weeks’ pay that he believes is outstanding as well as some outstanding annual leave entitlements. The complainant sought agreement from the respondent in relation to a possible resolution of the complaints at the adjudication hearing. This was not possible as the respondent believed the complainant had received the appropriate entitlements during and at the end of his employment. |
Findings and Conclusions:
I note the position of both parties at the adjudication hearing. The first matter to be considered is whether the complaints are in time. The complainant has submitted numerous complaints under several employment rights statutes, and these are listed above. The complainant has also submitted complaints in respect of sectors that he was not employed in and in relation to Employment Regulations Orders (ERO’S) that did not apply to him. The complaints submitted and listed above, under “Procedure” are subject to a statutory six-month referral period. This period can be extended if the complainant can show that there were substantial reasons for the delay in submitting his complaints which would provide both a reason and an excuse for the later referral. The complainant’s reason for the late referral was that he was unaware of the statutory time limit. This does not meet the test set out in Cementation Skanska v Carroll and is a not a valid reason for granting an extension of time. Respondent’s supplemental submissions. I note the submissions of the respondent which were submitted post hearing, and I have considered the precedent case law submitted in respect of the points raised. On the issue of annual leave, I find that the date of the complainant’s resignation (17th September 2021) is the last date that a contravention of the Act could have arisen in respect of annual leave entitlements. The complaint submitted was more than six months following the complainant’s resignation and, on that basis, I find that the complaint is out of time. Conclusions Having considered the verbal and written submissions of both parties to the complaints, I find that all complaints are out of time. The reasons put forward by the complainant for the late referral of the complaints do not, in my view, meet the legal test for establishing reasonable cause an on that basis I do not grant an extension of time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
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.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
For the reasons stated above, I find that the entirety of the complaints are out of time and are statute barred. |
Dated: 10/02/2026
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Case law cited by the respondent: Cementation Skanska v Carroll Labour Court Determination No: DWT 0338 Minister for Finance v CPSU and Others 2007 18 ELR 36 Royal Liver Assurance v Macken and Ors [2002] 4 IR427 A facilities Co-ordinator v A Bakery, WRC Adjudication Decision No: ADJ-00019188 Joanna Dylong v Grzegorz Sleczka, WRC Adjudication Decision No: ADJ-00030599 Nowak V Data Protection Commissioner [2012] IEHC 499 Fox v McDonald [2017] IECA 189 |