Complainant

Respondent

Parties

Lee  Whelan

Peninsula Hr And Health & Safety

Representatives

Nora Cashe Peninsula Group Limited

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-00074281-001

12/08/2025

The Complainant alleges that he is due holiday pay going back to the commencement of his employment with the Respondent. The Respondent alleges that the complaint is stature barred.

The Complainant was employed by the Respondent during two separate periods: from May 2022 to March 2024, and again from April 2024 to April 2025.

During both periods of employment, the Complainant worked in a sales role where commission constituted a consistent and essential part of his overall remuneration. This commission was directly earned through sales generated by the Complainant and formed a regular component of his weekly earnings.

The Complainant understands that, under the Organisation of Working Time Act 1997, holiday pay must reflect an employee’s normal weekly remuneration, which includes commission. On this basis, the Complainant believes that the calculation of his holiday pay between May 2022 and January 2025 may not have fully complied with the requirements of the Act.

In or around January 2025, the Respondent adjusted the calculation of holiday pay and applied a corrected method going forward. However, this change was not communicated as a legal requirement under the Act and was instead presented as a discretionary ‘benefit’.

The Complainant subsequently contacted Moira, the Chief Operating Officer, by email. He was informed that the Respondent had calculated the matter and that no monies were owed to him. When the Complainant requested a breakdown of these calculations, he received no response.”

The Complainant feels that he is being “hard done by” because there is a limitation as to how far back the Adjudicator can go back. He is not an employment law expert, and he only found out recently about the six months rule. On that basis the time should be extended to allow for the entire period of the claim to be adjudicated on.

Mr. Whelan commenced employment with BrightHr, a subsidiary of the Peninsula Group, on the 29th of April 2024. This followed a previous period of employment with the company from which he voluntarily resigned. He was employed in the position of Business Software Consultant, working 40 hours per week with a base salary of €32,000.

During the initial three months of his employment, Mr. Whelan earned €1,000 in 'protected' commission payments. After this period, he was eligible to participate in the Sales Team Commission Scheme. Unfortunately, Mr. Whelan’s employment was terminated on the 4th of April 2025

The Complainant has lodged a complaint under the Organisation of Working Time Act 1997, alleging that the company failed to pay him for his paid holiday/annual leave entitlements, specifically claiming that his annual leave payments were calculated incorrectly. However, the Respondent denies these allegations.

It should be noted that the complaint was lodged on the 12th of August 2025. The Complainant has referenced periods of time from May 2022 to March 2024, which fall outside the statutory time.

Furthermore, the Complainant has referred to periods from April 2024 to January 2025, which also fall outside the statutory time frame outlined in the legislation. Therefore, the claim is statute-barred, and the Adjudication Officer does not have jurisdiction to hear this matter.

Additionally, the Complainant only began employment with the Respondent on the 29th of April 2024. Consequently, much of that month should be excluded from the complaint, as the Complainant was not employed by the Respondent during this time. Prior to that, the Complainant had initially commenced his employment with the Respondent in May 2022, but he tendered his resignation in March 2024.

On the 29th of April 2024, Mr. Whelan returned to employment with the Respondent, signing a new contract of employment and receiving an updated letter of offer that outlined his main terms of employment. Throughout his employment, the Complainant was provided with regular payslips detailing his monthly salary, commission payments, bonuses, and other entitlements.

During the relevant reference period, Mr. Whelan took annual leave on the 14th of January 2025 (2 hours 15 minutes), the 16th of January 2025 (2 hours 45 minutes), and from the 20th of January 2025 to the 22nd of January 2025 (24 hours). The Complainant accepted in evidence that there was no issue from January 2025 until the end of his employment.

All payments due to the Complainant within the defined reference period have been paid in full, and there are no outstanding payments in relation to salary, commission, bonuses, annual leave, or any other entitlement.

The Complainant’s employment was terminated on the 4th of April 2025. At the time of his dismissal, all payments due and owing to him were discharged appropriately, and there are no further entitlements remaining.

I have carefully considered the evidence and submissions presented by both the Complainant and the Respondent.

The Complainant alleges that his holiday pay was incorrectly calculated in breach of the Organisation of Working Time Act 1997, on the basis that commission, which formed a regular and essential part of his remuneration, was not properly included. The Complainant’s employment with the Respondent occurred over two distinct periods, namely from May 2022 to March 2024 and from April 2024 to April 2025. The complaint was presented to the Workplace Relations Commission on 12 August 2025. The Complainant concedes that the situation, as he saw it, was rectify in January 2025 and there were no issues with payments from then until his employment ended.

The Respondent denies the claim and submits, inter alia, that the complaint is statute barred. It is contended that all payments due to the Complainant were correctly made and that, in any event, the Adjudication Officer does not have jurisdiction to hear the complaint due to the time limits prescribed by legislation.

Section 41(6) of the Workplace Relations Act 2015 provides that a complaint shall not be presented to the Director General after the expiration of six months beginning on the date of the contravention to which the complaint relates, subject to an extension to twelve months where reasonable cause for the delay is shown.

Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'.

Without prejudice to the above argument “reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.  Here the test was set out in the following term;

“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 of 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 had not been present he would have initiated the claim on time.”

In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should been enlarged for “good reason” in judicial review proceedings pursuant to Order 84 Rule 21 of the Rules of the Superior Courts 1986.   That approach was held to be correct by the High Court in Minister for Finance v CPSU and others .   The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation  .  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 were justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.   Secondly, the onus is on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, I must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.  It is the actual delay that must be explained and justified. Finally, while the established test imposes a relatively low threshold of reasonableness on an Applicant, there is some limitation on the range of issues which can be taken into account.”   In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings”.  

 No application for an extension of time, nor any submission establishing reasonable cause for such an extension, has been properly made in this case other that the Complainant stating that he feels hard done by because he was not aware of the law. As has been well established in this jurisdiction, ignorance of the law is no excuse. Therefore I do not have jurisdiction to invoke S41(8) of the Act.

Having regard to the evidence, the alleged contraventions relate to periods of employment extending from May 2022 up to January 2025 at the latest. The Complainant’s employment terminated on 4 April 2025, yet the complaint was not lodged until 12 August 2025. I note that any payments due to him where paid and are reflected in his final payslip. Accordingly, the alleged contraventions from 2024  fall outside the six-month time limit prescribed by Section 41(6) of the Workplace Relations Act 2015.

In the absence of jurisdiction to entertain the complaint, and no grounds having been advanced to extend the statutory time limit, the Adjudication Officer finds that the complaint is statute barred.

The complaint is not well founded, as it is statute barred pursuant to Section 41(6) of the Workplace Relations Act 2015.

The Complaint fails.