Complainant

Respondent

Parties

Tom  McCarthy

Shannondoc.ie

Representatives

Gerard Kennedy, Employee Advocate

Keevagh Heverin, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00066464-001

03/10/2024

The Complainant accepted voluntary redundancy effective from 19 November 2021.

On 3 October 2024, the Complainant referred his claim to the Director General of the WRC seeking retrospective payments that were made to the Respondent’s staff post his redundancy.

The Complainant asserts that his former employer Shannondoc has breached the terms of the Payment of Wages Act by failing to pay him retrospective payments due under the provisions of national agreements (Public Service Stability Agreements) post termination of his employment due to redundancy.

The complaint was received by the WRC on 3 October 2024, therefore the relevant reference period for the application of the Act commenced on 3 April 2024.

The Complainant submits that the last payment that current staff received for retrospective application of the PSSA occurred on 18 April 2024, therefore, bringing the Complainant’s complaint within the jurisdiction of the WRC.

The argument centres on the position that the Complainant is entitled to be remunerated on the same basis of his colleagues who received the benefit of the retrospective payment of the provisions of the national agreements due between 1 January 2018 and 1 October 2020. These retrospective payments were made to staff in 5 separate payments between 22 February 2024 and 18 April 2024 with an average payout of €2,500 per payment.

It is the Complainant’s contention that the Respondent's failure to apply these payments to the Complainant is not compatible with section 5(6)(a) of the Act and that the non-payment of the nationally agreed rates is a deficiency in pay and as per the Act, and should be treated as an unauthorised deduction from pay.

BACKGROUND:

The Complainant commenced employment with the Respondent in 2008 as a driver and remained in employment up to the termination of his employment in December 2021 through redundancy. By virtue of a decision of the Labour Court circa 1986 the Complainant would have been entitled to parity of pay with his equivalent grade in the HSE and therefore would have been entitled to the application of the terms of the PSSA to his wage structure during the currency of his employment.

The Respondent did not apply the terms of the PSSA when due under the agreement. Those terms included the following pay adjustments.

1 January 2018 - 1%; 1 October 2018 – 1%; 1 January 2019 – 1%; 1 October 2019 -1.75%; 1 January 2020 – 0.5%; and 1 October 2020 – 2%.

These payments due to staff were applied retrospectively to all existing staff in 2024 following an agreement with the group of unions representing their members. It is the Complainant’s contention that given that he was in employment with Shannondoc when these increases fell due that the failure to apply the same retrospective application of the wage increases is a deficiency in pay and as such in breach of the Payment of Wages Act.

Arguments

The Payment of Wages Act defines wages as

"Any sum 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 emolument, referable to his employment whether payable under his contract or otherwise"

In the Complainant’s case the retrospective payments that have been made to staff that align with the currency of his employment meet that definition.

Section 5(6) of the Act determines that the non-payment of due wages is considered to be an unauthorised deduction from wages. The Labour Court has been consistent in its approach in determining cases under the Payment of Wages Act, in that if a case is to be successful it must first of all be determined that the disputed payments are properly payable to the complainant. It is the Complainant’s contention that due to the fact that the wage increases applicable to this case fell due during the currency of his employment and have been applied to his former colleagues that those wage increases are properly payable to him and that the nonpayment of same must be considered to be a breach of the Payment of Wages Act.

In meeting the jurisdictional requirements of the Act regarding time limits the last payment made to existing staff occurred on the 18 April 2024. The Complainant’s complaint was received within the 6-month period after that date and as such is within time.

In advancing this argument, the Complainant relies on the decision of the High Court in the HSE V McDermot where at paragraph 15 of his judgement Justice Hogan determined that

"for the purpose of this limitation period everything turns accordingly on the manner in which the complaint has been framed by the employee. If for example the employer has been unlawfully making deductions for a 3 year period, then provided that the complaint which has been presented relates to a period of 6 months beginning on the date to which the complaint relates the complaint will be nonetheless in time

Supplementary submission of 22 July 2025

On 22 July 2025, the Complainant’s representative furnished the following supplementary submission.

The Respondent's position regarding its contention that the claim is time barred remains unchanged. The Complainant’s position regarding this argument is set out in the original submission. The Respondent asserted that as a private sector employer it is not bound by the terms and conditions of employment applicable in the HSE and that the terms of Labour Court recommendation LCR18089 which established the link with the HSE for pay purposes was not binding.

The Complainant relies on LCR18089 in respect of pay parity which was accepted and implemented by the employer and as such forms the basis of a collective agreement between Shannondoc and the group of unions representing the staff of the organisation. The Complainant contends that the existence of this collective agreement gives legal standing to the Complainant’s claim.

In support of this contention the Complainant relies on the provisions of the High Court decision in Conway & Others v HSE 2016 where Justice Murphy in her judgement held that collective agreements such as the agreed HSE disciplinary procedures and the HSE Trust in Care policies were contractual agreements that had to be observed and not aspirational policies as argued by the HSE. In addition, it is accepted under the Transfer of Undertaking Regulations that the provisions of collective agreements form part of the transfer requirements between employers in the context of meeting statutory obligations.

In the Respondent’s submission it was confirmed that the Complainant was paid on the Healthcare Assistant salary scale. This reference to salary scales can only be interpreted as the HSE Healthcare Assistant salary scales as Shannondoc as an organisation do not and have never employed Healthcare Assistants. The Complainant’s contract of employment at clause 8 sets out that his remuneration would be based on the appropriate point of the incremental scale agreed in 2006. It is the Complainant’s contention that at the time of being made redundant that provision of his contract was not being adhered to and the breach of his contract terms can only be rectified by concession of this claim under the Payment of Wages Act.

The Respondent has argued that during the currency of his employment the Complainant never received a salary below his contractual salary. ln support of this argument the Respondent has relied on two Adjudication Officers’ decisions which rejected similar claims in other employments. Those decisions were based on the conclusion that there was no contractual entitlement to disputed payments in those cases.

The Complainant submits that the failure of the Respondent to include him in contractually obliged retrospective payments due to staff is a breach of his contract terms both expressed and implied. lt is evident that the Respondent did not maintain the agreed Healthcare Assistant rate of pay during the currency of the Complainant’s employment and by their omissions breached the terms of his contract.

The Respondent has relied on the Complainant’s direct evidence at the last hearing that he was made aware by his ex-colleagues in July 2023 of the proposed pay restoration. It is quite obvious that the Complainant was incorrect regarding this date given that direct staff were only made aware of same by letter dated 7 February 2024.

Application to extend the time limits

At the adjudication hearing, an application was made to extend the applicable time limits. It was asserted that the Complainant was not aware that the agreement had been reached and that the money was paid out to the staff.

Summary of direct evidence and cross-examination of the Complainant

The Complainant gave evidence that he commenced his employment in 2008. He accepted voluntary redundancy and at that time he received all outstanding payments. He said that at that time nobody told him and he was not aware that any payments were coming.

In July 2023, he found out from an employee of the Respondent that retrospective payments were due to start. He said that an employee of the Respondent told him at that time that the payments were coming. The Complainant said that he rang the WRC aand he was told about the time limits and possibility of extension in certain circumstances. As no money was paid out to the current staff, he did not submit the claim. The Complainant said that subsequently (he did not recall when exactly) his colleague told him that they got the first payment.

In cross-examination the Complainant confirmed that his employment ceased in November 2021, and he was not employed by the Respondent since. He received no further payments from the Respondent after the termination of his employment.

The Respondent submits as follows.

Preliminary Issue - Time limits

As the Complainant ceased his employment with the Respondent effective from 19 November 2021 due to voluntary redundancy and did not forward his complaint to the WRC until 3 October 2024, the Respondent submits that the Adjudication Officer does not have jurisdiction to hear this complaint and the matter is statute barred.

The Complainant’s employment with the Respondent ceased on 19 November 2021 and he received his last payment from the Respondent on 16 December 2021. The Complainant’s claim is manifestly out of time.

The Complainant was not in the employment of the Respondent during the cognisable period and no payments were due to the Complainant during this period, therefore no breach or deductions were made within the meaning of the Act. The amount of wages properly payable to the Complainant during these periods was nil. No deduction within the meaning of the Act has been made from the wages of the Complainant as contended by him.

Section 41(6) of the Workplace Relations Act, 2015 provides

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to Page 3 of 20 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”.

Whilst section 41(8) of the Workplace Relations Act 2015 provides that the six-month time limit should apply and that it can only be extended due to ‘’reasonable cause’’ it is submitted that as the complaint, which was submitted approximately 34 months after the Complainant ceased employment with the Respondent, is manifestly out of time.

It is clear that the Complainant has not submitted his claim within the period of six months, beginning on the date that his employment ceased with the Respondent nor has he in fact submitted it within the maximum twelve-month period permissible under the Workplace Relations Act, 2015. It is submitted that the matter is statute barred.

In Sheehy v Most Reverend James Moriarty the Tribunal held that ‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing’’ where ‘’the claims were not instituted within the time periods set out in the legislation’’

Given the significance of the preliminary matter, the Respondent requests that a decision be reached on this preliminary matter before proceeding to consider the substantive issue.

In the case of Employee v Employer UD969/2009, the Employment Appeals Tribunal was asked to decide on a preliminary matter first before moving to hearing the substantive case.  Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

In the case of Bus Eireann v SIPTU PTD048/2004, the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’ referencing the judgement of O’Higgins CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242.

The Respondent submits that the Adjudication Officer assigned to hear this case has no jurisdiction to do so, and therefore requests that the claims fail on the preliminary matter.

Background to the Respondent

Founded in 2002; Shannondoc delivers a high standard of urgent out of hours family doctor service to patients in the Midwest over the last 21 years. Shannondoc employs 122 employees. Shannondoc is a private limited company funded fully by the HSE. Shannondoc is a section 39 organisation with a Service Level Agreement under the HSE to provide an urgent out of hours GP service.

Background to the Complainant

The Complainant commenced employment with the Respondent on 1 March 2005 as a driver. The Complainant worked an average of 35 hours week. The Complainant accepted a voluntary redundancy offer and was made redundant on 19 November 2021.

Respondent’s Position

The Complainant was not an employee within the consignable period and therefore was not in receipt of any payment within the meaning of the Act, therefore there was no breach in the Act in terms of unlawful deductions as the Complainant was not employed or in receipt of any payments from the Respondent.

Conclusion

The Respondent submits that the Adjudication Officer assigned to hear this case has no jurisdiction to do so as a result of applicable statutory time limits which have not been adhered to, and that the matter cannot proceed as it is statute barred.

Supplemental submission of 30 June 2025

Following the first day of the hearing, the Respondent furnished a further submission regarding the applicable time limits.

Following a submission of an application to the HSE section 39 Pay Restoration team, Shannondoc received funding from the HSE in respect of section 39 Pay Restoration Project and a letter was issued to existing employees on 7 February 2024 sharing the details of such.

The relevant pay in respect to years 2019 - 2024 was paid to all those working in Shannondoc between 8 February and 18 April 2024.

Shannondoc, although under no legal obligation to do so as a private employer, endeavours to align their salary scales to that of the HSE and to apply changes and guidelines as they occur. Maintaining this position however is strictly subject to prevailing commercial conditions, subject to HSE funding and all significant changes are subject to approval. No written confirmation of increases in the Complainant’s pay was ever issued and the Complainant was paid in line with his contract of employment on all occasions during this employment.

The Complainant was paid an hourly rate for hours worked. Hours that attracted a premium were paid at a premium. He was paid on a healthcare assistant salary scale and on his anniversary, increments were applied accordingly.

While the LCR18089 from 2005 refers to pay parity with equivalent grades in the HSE, it also noted that the “practical difficulties relating to funding which will have to be addressed before the recommendation could be fully implemented”. The Respondent was also not bound by this Labour Court recommendation. There is ongoing difficulty in relation to the application to the HSE for funding for section 39 organisation.

Respondents Position

Strictly without prejudice to the preliminary argument that this claim is out of time, the Respondent refutes the claim under the Payment of Wages Act in its entirety, as no unlawful deduction of wages has occurred in line with the renumeration stated in the Complainant’s contract of employment. At no point has the Complainant received a salary below his contractual salary. In making this statement the Respondent is taking into account not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

The Complainant no longer worked for the Respondent when the relevant pay was made to current employees between 8 February and 18 April 2024 having left the business through voluntary redundancy on 19 November 2021 and was therefore not on a live payroll at that time and therefore this payment of wages, as advised did not apply.

The Complainant is arguing that there was a deficiency in the payment of his wages. The Payment of Wages Act, 1991, under section 5(6) states:

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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

As per the letter to existing staff on pay restoration dated 7 February 2024 the pay restoration payments were for periods between 2019-2024. These were paid out over six pay periods between 8 February 2024 and 18 April 2024 as follows:

·        Pay Period 03 2024- all staff moved to January 2020 pay scales with a payment date of 8 February 2024.

·        Pay Period 04 2024 covered pay restoration payments from January to December 2019 with a payment date 22 February 2024.

·        Pay Period 05 2024 covered pay restoration payments from January to December 2020 with a payment date 7 March 2024.

·        Pay Period 06 2024 covered pay restoration payments from January to December 2021 with a payment date 21 March 2024.

·        Pay Period 07 2024 covered pay restoration payments from January to December 2022 with a payment date 4 April 2024.

·        Pay Period 08 2024 covered pay restoration payments from January 2023 to January 2024 with a payment date 18 April 2024.

Under Section 6(4) of the Payment of Wages Act “A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

The Complainant lodged his claim on 2 October 2024 meaning the cognisable period of 3 April 2024 to 2 October 2024 applies. The payments made between the cognisable period to existing staff were for pay restoration between January to December 2022 and January 2023 to January 2024. The Complainant was not employed by the Respondent during these periods (2022-2024) therefore the Complainant would not have been entitled to any pay restoration between these dates.

Additionally, the Workplace Relations Act 2015 provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation. If a complaint is not within the time limit an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated ‘reasonable cause’ for the delay.

The Acts refer to ‘reasonable cause’ as permitting an extension of the statutory time limits. The tests applied by the Labour Court for extensions of time under the Acts (and other legislation with the same wording) have been well established. The Respondent cites the case of Cementation Skanska v Carroll, DWT0338, where the Court articulated the test by stating:

“It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 circumstance known to the Complainant at the material time. The Complainant’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 Complainant 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 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 Complainant has a good arguable case.”

The Complainant has not provided any “reasonable cause” that prevented him from lodging the claim within the 6 months of the alleged contravention. The Complainant stated that he knew that an agreement had been reached and was made aware by his ex-colleagues in respect of pay restoration in July 2023; some 15 months before he lodged the complaint, and also shared that he called the WRC in January 2024 and yet did not lodge his complaint until October 2024, therefore had the knowledge and time but did not lodge the complaint.

The Respondent does not accept that in all reasonableness that the lodging of this complaint should have been taken until 2 October 2024, some 8 months since the beginning date of the alleged contravention to which the complaint relates. As such there is nothing in the circumstances of this complaint which could be considered exceptional, and which could be considered to have prevented the Complainant from making the complaint.

Case Law

In the case Jessica Davies v St Vincents Private Hospital, (ADJ 00046159), the AO stated

‘I can find no precedent to establish that a former employee is entitled to a pay increase awarded to employees in their workplace after their departure and it seems to me that such a policy doesn’t make sense from a commercial perspective. In simple terms, outside some legal provision, there is no return for an employer on paying wages to a former employee.’

In Fionnuala Barrett V St Vincents Private Hospital, (ADJ 00045860), the AO stated

‘Having considered the submissions of both parties to this complaint, I find that on the two dates in question, when the pay increases became payable (1st December 2022) and on the date that the retrospection was paid (30th March 2023) the claimant was no longer in the employment of the respondent. In my view, the claimant was paid in line with her contract of employment while employed and after she ceased to be an employee was not entitled to receive the pay increases in question. On that basis, the claimant was paid all monies that were properly payable to her, and the respondent did not breach the legislation as claimed.”

CONCLUSION

As the Complainant had ceased his employment with the Respondent in November 2021, no payments were due during the cognisable period of 3 April 2024 to 2 October 2024. Therefore, the amount properly payable to the Complainant during this period was nil, therefore no breach within the meaning of the Act occurred.

The Complainant was properly paid within the meaning of the Act as per his contract of employment during his employment with Shannondoc. The Respondent fully refutes the claim and submits that there has been no breach of the 1991 Act.

At the adjudication hearing, the Respondent noted that the precedent cited by the Complainant does not involve the Respondent and, therefore, did not apply.

The Respondent submitted that at the time of the Complainant’s redundancy, there was no agreement regarding pay restoration or any indication that pay restoration would take place.

The Complainant was paid what he was properly entitled to at the time of his employment. When the pay restoration was implemented, it was not properly payable to the Complainant as he was not an employee of the Respondent.

Summary of direct evidence and cross-examination of Ms Houlihan, HR Manager

Ms Houlihan said that the Respondent is a private limited company but it is partly funded by the HSE. The Respondent applies an incremental pay scale. However, she said that the Respondent is never up to date with the HSE pay scale. She said that the Respondent was applying the 2018 pay scale and the HSE agreed to give some funding to try to align the scale. However, at the moment, the Respondent is on the 2020 pay scale.

Ms Houlihan said that in February 2024, a circular was issued to the current staff with the breakdown of the payments.

She said that the Complainant applied for voluntary redundancy which took effect on 19 November 2021. No issue regarding any outstanding payments were raised.

In cross-examination, Ms Houlihan confirmed that the drivers were on the pay scale of the Healthcare Assistants. However, at the time of termination, the 2018 HSE pay scale applied as the Respondent is not aligned with the HSE.

Ms Houlihan said that the funding was received at the end of 2023/start of 2024 and the memo was issued in February 224 to all current staff.

Preliminary matters

The Respondent’s request to dispose of the matter on preliminary basis

The Respondent raised a preliminary matter of time limits and requested that the claim be disposed of on the basis that it was referred to the Director General outside of the prescribed time limits.

I have considered the Respondent’s request. I noted that neither the Workplace Relations Act 2015, as amended, nor the Payment of Wages Act, 1991, as amended, empowers me to make a separate decision on a preliminary matter in a manner analogous to the provision of section 79(3A) of the Employment Equality Act 1998, as amended. 

I relied on the following dicta of Phelan J in Singh v Corbertt [2023] IEHC 27 in support of my position:

“[T]he jurisdiction to direct the trial of a preliminary issue is one to be exercised with great caution … which stems from litigation experience which shows that it may be very difficult in some cases to predict in advance of the hearing what facts might be critical in determining the issues which they potentially give rise to.”

Furthermore, I drew the parties attention to the judgment in McKeown v The Minister for Defence, Ireland and the Attorney General [2025] IEHC 177 where Mulcahy J at para. 34 recites the criteria set in Campion v South Tipperary County Council [2015] IESC 79; [2015] 1 IR 716 and highlights that it is rarely appropriate to have the matter dealt with by way of preliminary trial.

If I were to accede to the request to make a decision on a preliminary matter, which on appeal to the Labour Court was overturned, the Labour Court could not remit the case back to the WRC for a fresh hearing of the whole case.

If this were to happen, the parties would be denied access to justice as is their right. Hence my decision to hold a unitary hearing into this case. 

Definition of an employee

Section 1 Interpretation of the Payment of Wages Act 1991 provided the following definition.

“employee” meansa person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer[.]”

“contract of employment” means—

(a) a contract of service or of apprenticeship, and

(b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;

It is clear from this that the protection of the Act is extended to include a person whose employment has ceased, and it follows therefore, that the Complainant, who was not an employee of the Respondent when he submitted his complaint, is entitled to have a complaint investigated regarding non-payment of wages for a period during which he was an employee. 

Applicable time limits

The time limit for submitting a complaint under the Payment of Wages Act is set out at section 41(6) of the Workplace Relations Act, 2015:

(6) 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 an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 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 expiration of the period referred to in subsection (6) or (7) (but not later than 6 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 implications of the above were explained to the parties at the adjudication hearing. 

I have jurisdiction to investigate any complaint pursuant to the Payment of Wages Act,1991 for a period of six months from the date of the referral of complaint. This complaint was presented to the Director General of the WRC on 3 October 2024 and therefore the cognisable period that may be investigated is from 4 April 2024 to 3 October 2024.

The Complainant applied for the time limits to be extended on the basis that he was not aware that an agreement regarding the retrospective payments had been reached and that the payments had been made.

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the Act to the Director General of the WRC. The general principles which apply are that something must be advanced which 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 Kvaerner Cementation) Limited v Carroll DWT0338 and is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour 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 DWT0338Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should 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 & Ors [2007] 18 ELR 36.

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.”

In Cementation Skanska, the Court further held that:

‘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.’

The Complainant’s representative pointed out in his submission that the Complainant’s evidence regarding his hearing from a colleague in July 2023 about the payments was clearly an error. It was asserted that the Complainant could not have known about the payments as these have not commenced until February 2024 and, therefore the date in question was July 2024.

I cannot accept this proposition for the following reasons. I note that the Complainant’s evidence was that in July 2023, he found out from an employee of the Respondent that the payments “were coming” and “were due to start”.  The Complainant gave evidence that he rang the WRC, and he was informed about the applicable time limits and possibility of extension in certain circumstances. The Complainant further said that as no money had been paid out to the current staff at that time, he did not submit the claim. Therefore, the conversation with a colleague could not have taken place in July 2024 as, at that stage, all payments have been made.

The Complainant further said that subsequently (he did not recall when) his colleague told him that they got the first payment.

I note that the Complainant’s evidence referred specifically to the first payment being made rather than payments in general. This, in my view, would indicate that the Complainant found out about the first payment after it was made but before the subsequent payments were made. I note that the first payment was made on 8 February 2024. The second payment was made on 22 February 2024. If the Complainant’s conversation with the colleague related to the first payment only, it would have to take place at some stage between these two dates. 

As the Complainant was aware of the commencement of the payments in February 2024, and by his own evidence he was made aware of the time limits, I cannot accede to his request to extend the applicable time limits for the referral of his claim on the basis that he was not aware the agreement regarding the retrospective payments had been reached and that the payments had been made.

I find that the Complainant has not shown reasonable cause to empower me to extend the timeframe for the submission of a complaint under the Act. 

Consequently, the cognisable period that may be investigated is from 4 April 2024 to 3 October 2024.

Substantive matter

Section 1 of the Payment of Wages Act, 1991 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: Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind,

(vi) any payment by way of tips and gratuities.

Section 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) 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.

In Sullivan v Department of Education PW 2/1997, the Employment Appeals Tribunal took the word “payable” to mean “properly payable”, consequently it was not simply a matter of what may have been paid from the outset but all sums to which an employee is properly entitled.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 MacGrath J considered Section 5 of the Act as follows:

“36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.”

The High Court made it clear that, when considering a complaint under the Act, an Adjudication Officer must first establish the wages which were properly payable to the employee 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 Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273, that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

The issue for consideration in respect of the Complainant is whether the retrospective wages paid in the cognisable period were wages properly payable to the Complainant.

There was no dispute that the Complainant’s employment terminated by way of voluntary redundancy on 19 November 2021.

It was not until some time towards the end of 2023 / beginning of 2024 that the Respondent applied for and received funding in respect of section 39 pay restoration. This was confirmed to all exiting staff by letter dated 7 February 2024. It is clear that, as the Complainant’s relationship with the Respondent was severed by his acceptance of redundancy, and therefore, in my view, the terms of his employment (which had concluded some two years previously) were not encompassed by the agreement on the retrospective pay.  

Furthermore, the payments that fell in the cognisable period were:

·        Payment on 4 April 2024, which covered pay restoration payment for the period from January to December 2022.

·        Payment on 18 April 2024, which covered pay restoration payment for the period from January 2023 to January 2024.

Neither of these payments applied to the Complainant as his employment with the Respondent terminated on 19 November 2021.

For the sake of clarity, the Complainant’s representative referred to “a decision of the Labour Court circa 1986” in support of the Complainant’s claim. No details of such a decision were put forward either in the submission or at the hearing.

Regarding the Labour Court recommendation LCR18089 South West Doctors on Call Limited and SIPTU pursuant to section 26 of the Industrial Relations Act, 1990, I note that the recommendation does not relate to the Respondent. I fail to understand the Complainant’s assertion that the recommendation constitutes a collective agreement that would encompass the Respondent and would give legal standing to the Complainant’s claim.

I declare this complaint to be not well founded.

Retrospective pay – pay restoration-