Complainant

Respondent

Parties

Allen Phillip  Ndhlovu

Unity Healthcare Services Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Pretty Ndawo Migrant Rights Centre Ireland

n/a

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-00068225-001

19/12/2024

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

CA-00068225-002

19/12/2024

The Complainant was offered the role of Healthcare Assistant with the Respondent in July 2023 with a promised weekly payment of €585 per week. He arrived in Ireland on 14 December 2023 having been instructed by the Respondent that he would be required to be in the country to commence work. The Complainant stated however that despite this initial promise and subsequent repeated promises he has not commenced work and only received a payment of €300-€400 from the Respondent in March 2024.

The Complainant stated that he learnt of the Respondent through a family member and subsequently applied for a Healthcare Assistant position. He states that he was later invited to an interview and subsequently offered the position by the Respondent. He stated that before his employment permit was applied for, the Respondent informed him that he needed to pay €2,500 to cover cost of his employment permit, food, transport and accommodation in the State. The Complainant relied on his brother, who lives in Ireland, to make the payment by bank transfer. Subsequently, Allen’s employment permit was issued in September 2023. The Complainant was informed by the Respondent that he would have to pay for his own flight ticket and visa application to come to Ireland to begin work. His visa was granted in October 2023 and was instructed by the Respondent to wait before travelling as the company was still processing his papers.

Following an instruction from the Respondent that he should travel to Ireland in December 2023 to begin work, the Complainant arrived in Ireland on 14 December together with 17 other workers employed by the Respondent. Upon his arrival, the Complainant was informed that he would be required to start work within a few days. He made several efforts to contact the Respondent subsequently but the Respondent failed to provide him with a specific start date. Instead, the Respondent sent an email to the Respondent on 11 March 2024 stating that workers will receive €100 per week as income. The Complainant states that he received approximately €300-400 income from the Respondent around that time and has not received any further payments

The Respondent did not present any written or oral submissions.

CA-00068225-001:

The Complainant stated that he was seeking compensation in respect of his outstanding wages from the Respondent.  The approach to be taken when adjudicating on a claim under the Payment of Wages Act 1991 is set out in Marek Balans -v- Tesco Ireland Limited [2020] IEHC 55 approving Dunnes Stores (Cornels court) Limited -v- Lacey [2007] 1 1R 478. Specifically, a decision-maker must firstly determine what wages are properly payable under the employment contract before determining whether there has been a deduction under Section 5(1) of the Payment of Wages Act 1991.  

Section 5(1) of the Payment of Wages Act 1991 provides: “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.” 

The Complainant gave evidence in relation to his outstanding wages and provided a copy of his work permit dated from 5 October 2023 to 4 October 2025. He stated, without contradiction from the Respondent, that he had been repeatedly promised that work would start following his arrival in Ireland in May 2024 but this promise never materialised.

As the Respondent never either revoked the Complainant’s work permit or dismissed him from the time of his arrival in Ireland when he was informed he would start work up to date of the referral of the complaint to the WRC on 19 December 2024, I am satisfied that he was still employed by them on that date. I also noted that there was no suggestion that the Complainant was laid off.

Considering all of the foregoing, I find that this complaint is well founded and that the Complainant was not paid the wages he was entitled to in the period from 20 June 2024 to 19 December 2024.

CA-00068225-002:

The preliminary matter for determination by the WRC in respect of this complaint is an application for an extension of time.

The Complainant lodged a complaint under the Act to the Workplace Relations Commission (WRC) on 19 December 2024. Therefore, the relevant period for consideration in assessing a contravention under the Act, having regard to the six-month statutory time frame set down at Section 41(6) of the Workplace Relations Act, 2015, is the period from 20 June 2024 to 19 December 2024

Should I find a reasonable cause for the delay in lodging the claim, the timeframe for considering when a contravention occurred can be extended from six months to twelve months. The Complainant in this case seeks an extension of the timeframe for lodging a complaint to encompass the period, from 20 December 2023 to 19 June 2024. The application for extending time is made on the basis that his failure to present a complaint within time was due to reasonable cause.

The established test for deciding if an extension of time can be granted for reasonable cause is that formulated in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.  The test was set out 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.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The burden of proof in establishing the existence of reasonable cause rests with the Complainant. To discharge that burden, and for an extension of time to be granted, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time. Finally, I must satisfy itself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

The Complainant’s representative stated that there was both a valid reason and a justifiable excuse for the delay in lodging the claim in circumstances where the Complainant was not aware of his employment rights or how to pursue statutory employment claims given that she was a foreign national.

In examining these assertions, I note that the WRC has regularly found that ignorance of the law cannot excuse the lodging of complaints outside the statutory time limits that apply.

It is also well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. While the reasons submitted by the Complainant in this case may explain the delay, I find that they do not provide afford a justifiable excuse for the delay.

Accordingly, I find that I have no jurisdiction to hear this complaint.

CA-00068225-001:

I find this complaint to be well-founded as set out above. 

In relation to redress, Section 6(1) of the Payment of Wages Act 1991 provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding- (a) the net amount of the wages, or tip or gratuity as the case may be (after the making of any lawful deduction therefrom) that- (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.”  

I consider the non-payment of wages to the Complainant in this case to be particularly egregious given that she was dependent upon such payment for his basic daily needs.  This was exacerbated by repeated empty promises of payment from the Respondent that the work she had been promised when she arrived in 2023 would begin. 

Despite being in the employment of the Respondent for the entire cognisable period, namely from 20 June 2024 to 19 December 2024, the Complainant did not receive any wages.

In line with s 6(1) of the Act above, I consider it reasonable in the circumstances to direct that the Respondent pays the Complainant compensation of twice the amount outstanding, being €30,420 (€585 *52). This amount is subject to taxation and the normal statutory deductions.

CA-00068225-002:

I find that I have no jurisdiction to hear this complaint for the reasons set out above.