Complainant

Respondent

Parties

Silibaziso  Nondo

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-00068223-001

19/12/2024

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

CA-00068223-002

19/12/2024

The Complainant was offered the role of Healthcare Assistant with the Respondent in 2022 with a promised weekly payment of €585 per week. She came to Ireland on 19 February 2024 having been promised that she would start work the following day. The Complainant stated however that despite this initial promise and subsequent repeated promises she has not commenced work and only received a payment of €400 from the Respondent in March 2024.

The Complainant is a Zimbabwean national. The Complainant stated that she became aware of the Respondent through a friend who knew another individual who was recruited by the agency in late 2021. She made an application for a Support Worker position in 2022. The Complainant was later invited to an online interview by the Respondent. Shortly after the interview, the Complainant was informed that she was successful and was offered the position. The Complainant accepted the job offer, thereafter, she was informed by the Respondent that she had to make a payment of €2,300 to cover fees for her accommodation and employment permit fee. The Complainant’s son proceeded to make the payment to the Respondent by bank transfer.

Prior to her arrival in Ireland, the Complainant was issued her employment permit in November 2023, and she subsequently applied for a travel visa to Ireland.

The Complaint stated that she signed 2 employment contracts with the Respondent. The first employment contract the Claimant signed is dated 23 August 2024. The employment start date as stated in the contract is 1 November 2023 and was utilised towards the application of her employment permit which was later granted in November 2023. A second employment contract dated 7 February 2024 was provided to the Complainant by the Respondent prior to her departure to Ireland. The second employment contract stated that the Claimant’s start date was 20 February 2024 and she was employed as a Healthcare Assistant/ Support worker at €15 per hour.

The Complainant stated that when she arrived in Ireland on 19 February 2024, the Respondent was not there to collect her. She informed the Respondent of her arrival and was informed that she needed to stay with her son, and was informed that she would start work shortly after. The Complainant stated that she made several attempts to contact the Respondent on receiving hours of work but to no avail. In March 2024, the Complainant states that she received a sum of €400 from the Respondent.

The Respondent, which provides emergency residential care for children under 18, stated that they attended a recruitment fair in Zimbabwe where they met the Complainant. Based on the qualifications she presented—including a social care certificate from Zimbabwe—and her references, she was offered conditional employment. This offer was contingent upon her securing a work permit, arranging her travel to Ireland, and ensuring accommodation.

The parties agreed that the Respondent would source accommodation in Cavan for her, resulting in a tenancy being arranged. It is accepted that the Complainant paid a total of €2,000 to the Respondent, which included €1,000 towards her rent and deposit (with €200 remaining payable upon arrival) and €1,000 for processing her employment permit application with the Department of Enterprise, Trade and Employment (DETE). The Complainant had informed them she had family in Ireland who would help with the payments, and the Respondent state they acted in good faith on this basis.

However, on 14 October 2024, the Respondent’s contract with Tusla fell through during Tusla’s ongoing compliance review of their residential centre. Without this contract, the Respondent could not receive referrals or offer work to any incoming employees. They asserted that they informed the Complainant not to travel to Ireland until these compliance matters were resolved, because her employment was conditional upon the centre opening and upon her completing mandatory Irish certifications required for working with vulnerable individuals—such as manual handling, English proficiency, a driving licence, and first aid/CPR. They stated that none of these onboarding steps were ever completed for the Complainant, and no contract of employment beyond the permit‑related document was ever issued. According to the Respondent, the permit‑supporting contract signed in August 2023 was solely to facilitate her work permit application and was not an active employment contract.

Despite their instructions not to travel, the Complainant arrived in Ireland on 19 February 2024. Her son informed the Respondent that she would be staying with him temporarily. The Respondent did not arrange transport or onboarding because they had not requested or authorised her travel, and because Tusla compliance was still ongoing. They state that she travelled to Wexford immediately upon arrival and told them she would wait there until the Tusla compliance issues were resolved. She also allegedly said she had travelled to Ireland to avoid her work permit being cancelled for non‑use.

The Respondents stated that they continued to hold the Cavan accommodation at her request. Later, however, they discovered that she had taken cash‑in‑hand employment with a company directed by her son, and subsequently with another company, all while using the Unity Healthcare work permit without authorisation. They allege she continued in alternative employment until April 2025, only seeking to amend her work permit after being challenged.

Ultimately, the Respondent asserted that the Complainant never intended to work for them, used their company to enter Ireland, and was neither ready nor available for employment.

CA-00068223-001:

The Complainant stated that she was seeking compensation in respect of her 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 (Cornelscourt) Limited v Lacey [2007] 1 IR 478. Specifically, a decision-maker must first 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.”

I accept the Complainant’s evidence that, following her arrival in Ireland, she repeatedly sought to contact the Respondent to establish when she would start work, but they did not revert to her. Even if I accept that the contract issued to the Complainant in August 2023 was provided solely to enable her to secure a work permit, I also note that a second employment contract, signed by the Respondent on 7 February 2024, was issued to the Complainant. This second employment contract stated that the Complainant’s start date would be 20 February 2024.

As the Respondent never revoked the Complainant’s work permit or dismissed her at any time between her arrival in Ireland and the referral of her complaint to the WRC on 19 December 2024, I am satisfied that she remained employed by them on that date. I also note that there was no suggestion that the Complainant was laid off.

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

CA-00068223-002:

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 a maximum of twelve months. The Complainant in this case seeks an extension of the timeframe for lodging a complaint to encompass the period, from 20 February 2024 to 19 June 2024. The application for extending time is made on the basis that her 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 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 circumstances 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 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 her 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-00068223-001:

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 her 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 February 2024 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-00068223-002:

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