Complainant

Respondent

Parties

Garth  Jones

The Pod Factory Ltd

Representatives

Self Represented

Kevin Hyland Pennisula

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-00072428-001

14/06/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00072428-002

14/06/2025

The Complainant was employed as a Business Analyst and sought payment of unpaid wages, notice pay and unpaid holiday pay.

The Complainant was employed as a Business Analyst from 18/6/2024  to 7/2/2025.

The Complainant was dismissed by phone on January 31st 2025 with immediate effect and was paid one weeks notice pay.

The Complainant sought payment of 5,650.12 Euros unpaid wages, 417.31 unpaid holiday pay and 2,and 535.60 Euros for non payment of notice pay.

The unpaid wages was from start date of employment on 18th June 2024 to 30th September 2024.  Some money was initially paid to the Complainant in cash and he could not calculate what tax if any was paid over by the company.

The Complainant sought 3 weeks short pay on his notice period which is 4 weeks according to his contract, based on 7 months of service.

The complaint was submitted on 14/6/2025.

The Complainant began employment at the Respondent on 18 June 2024 as a Business Analyst.

 It is submitted that the Complainant was informed of his dismissal on 31 January 2025 and was provided a letter of termination on 04 February 2025 and was placed on gardening leave until 07 February 2025.

The Respondent submitted that the Complainant was dismissed for failing to pass his probationary period.

 The Respondent submitted that there were an accumulation of issues relating to the Complainants performance, such as absenteeism.

The Respondent submitted that he had arranged a meeting with the Complainant on the day of his dismissal to inform him of same. However, the Complainant did not attend this meeting as he had left work early. Following this, the Respondent contacted the Complainant by phone to inform him of the decision to dismiss the Complainant as the working relationship was not working out and issued a dismissal letter a few days later.

Preliminary Issues CA-00072428-001 – Time Limit The Complainant claims that on the 29 September 2024 he was short paid by €5647.38 for the period 18 June 2024 to 30 September 2024.  The Respondent submitted that the complainant is out of time to submit this claim as it is outside of the cognisable period to bring a claim before the WRC which is 6 months. The Workplace Relations Act 2015 provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation. Section 41(6) of the Workplace Relations Act (2015) states: “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.” The Complainant is therefore required by to Section 41(6) of the Workplace Relations Act 2015 to notify the WRC of their complaint no later than six months from the date of the contravention.. It is submitted that any alleged contravention which occurred prior to 15 January 2025 is statute barred for the purposes of the Act and consequently jurisdiction should be declined in relation to them.

The Respondent submitted that in the case of Cementation Skanska v Carroll, DWT0338, the Court articulated the test pertaining to time limits by stating: “It is the Court's view that in considering if reasonable cause exists, it is for the Appellant 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 Appellant at the material time. The Appellant'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 Appellant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

CA-00072428-001 – Right to Work The Respondent submitted that the Complainant did not have the right to work during the period outlined in CA-00072428-001. The Respondent submitted that the Complainant was acting as an independent contractor for the period of 18 June 2024 to 26 September 2024, working on behalf of a Portugues Company owned by the Complainant.  Following receipt of the Complainant's visa and confirmation that he is eligible to be employed in Ireland, the Complainant commenced working as an employee from 26 September 2024, a copy of the Complainants Visa and a whatsapp screenshot of the Complainant informing the respondent of this was submitted.

The Respondent submitted that the Employment contract was provided to the Complainant in June 2024 to facilitate his visa application, but that he did not commence employment until 26 September 2024. The Respondent submitted that the Complainant has no standing to bring a claim for the period prior to 27 September 2024 on the Labour Court’s findings in Ta Hotels Limited T/a Lynams v. Vireshwarsingh Khoosye (RPD1916) and Ta Hotels Limited T/a Lynams Hotel v. Preeti Khoosye (RPD1917), in which the Labour Court held that migrant workers without valid immigration permission cannot bring complaints to the WRC or the Labour Court as the employment contract is void and unenforceable.

The Respondent submitted that the Complainant did not commence employment until he received his visa on 26 September 2024.  Prior to this date the Complainant was working as an independent contractor via his Portuguese company.  this is seen in the email documents where the Respondent is seeking invoices in relation to payment Therefore the Complainant was still within his six month probationary period, and under the contract is under a 1 week notice period which was paid. As the Complainant was still in his probationary period he was not entitled to the four week notice period he refers to in his complaint.

 The Complainants claim for short pay should fail, as the complaint is out of time, and also at the time of the complaint the Complainant did not have the right to work in Ireland, the complainant was in fact working as an independent contractor at this time via his Portuguese based Company.. The Complainant commenced employment on 26 September 2024 following receipt of his visa. Therefore the Complainant was within his probationary period and a 1 week notice period was applicable which was paid to the Complainant.

No Representative of the Respondent attended the initial Hearing and once communication was established with them by the WRC subsequent to the first Hearing they advised they had not received notice of the first Hearing and advised the communication addresses/emails given by the Complainant for them were not correct. The Adjudicator decided, based on natural justice, to reconvene the Hearing. A Representative of the Respondent made a submission in advance of the second Hearing and attended that Hearing. At the commencement of the Hearing, he advised that the Owner of the Respondent was delayed in mid air and could not attend the Hearing but the Representative was willing to proceed and set out the Respondent position. This was accepted by the Complainant and the Hearing proceeded on that basis.

The Complainant set out his complaints for unpaid wages, notice pay and holiday pay, as outlined above. The Respondent Representative argued the Payment of Wages complaint was out of time as he stated the employment commenced on 26/9/2024 and not 18/6/2024 as claimed by the Complainant. He advised the contract with the June start date was supplied to the Complainant to assist him with his application for a Work Permit as he was a South African National and was applying for a work permit in Ireland. He advised the permit was issued with effect from 26/9/2024 and that was the effective employment start date and that work done prior to that date was supplied by the Complainant through a Portuguese company as an Independent contractor and he was fully paid for his services for that time and no outstanding payment was due. He advised the Respondent sought invoices for the services for that period of time but was never supplied them and the Complainant was paid in cash for that service. With regard to any notice pay the Respondent stated he was paid what was due under his contract as he had less than six months service. The Respondent did not accept any holiday pay was due and advised all holidays due had been taken by the Complainant.

Findings

Payment of Wages Act 1991 complaint (CA-00072428-001)

The period of work from June 18th 2024  to September 26th 2024 cannot be considered as employment, irrespective of the existence of a contract of employment from June 2024 as the Complainant was not eligible to work in Ireland until his work permit was granted on September 26th 2024 and therefore any employment claimed prior to that date would be illegal and not subject to the Payment of Wages Act 1991. I reach this conclusion due to the start date of the work permit (September 26th 2024) and the payment arrangements entered into by the parties prior to the granting of the work permit. An argument was put forward that the complaint relating to June to September 2024 was out of time as it was submitted outside of the six month requirement but I deem reasonable cause did exist to extend that time due to the existence of a contract issued by the Respondent commencing in June 2024 and the payment arrangements entered into by the parties for those 3 months. The existence of reasonable cause for the delay exists because of these two issues and allow me issue a Decision on the substantive complaint.  I find the complaint for unpaid wages for the period between June and September is not well founded as the Complainant was not legally employed during this time as and as his payment of wages complaint relates solely to that period I have no jurisdiction to deal with the issue as he was not an employee during that time.

With regard to notice pay claimed the contract stated that one weeks notice was required if the Complainant was on probation and four weeks notice otherwise was required and that the notice must be given in writing. I deem the Complainant commenced employment on September 26th 2024 and ceased employment on February 7th 2025 and was given written notice of the termination of his employment on February 4th 2025.The complaint is taken under the Payment of Wages Act 1991 and not  the Minimum Notice and Terms Of Employment (Information) Act 1994 so therefore the legal question is whether the Complainant was entitled to be properly given and paid four weeks notice and the conclusion to that question according to the wording of the contract of employment is that the Complainant had finished his probation and therefore was entitled to four weeks notice.  I find the Complainant is entitled to the notice pay of 3 weeks and 4 days which equates to 3,434 Euros based on his salary of 55k per year.

Organisation of Working Time Act 1997 complaint (CA-00072428-002

The Complainant accepted sought holiday pay of 417 Euros but this included him allowing for holidays for the period when he was a in Independent Contractor working though a Portuguese company. I find that all holidays due were paid and the claim for unpaid holiday pay is not well founded.

 I find the Complaint for unpaid wages under the Payment of Wages Act is not well founded and I find the complaint for unpaid notice pay is well founded and award the Complainant  3,434  Euros.     CA-00072428-001

 I find the complaint under the Organisation of Working Time Act 1997 to be not well founded. CA-00072428-002

Unpaid salary