The Grove After School Care (Management Company) Ltd v Michele O'Sullivan

• Jurisdiction: Ireland
• Judgment Date: 02 May 2018
• Judgment citation (vLex): [2018] 5 JIEC 0201
• Date: 02 May 2018
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.PWD1820 ADJ-00006991 CA-00009045-001
• Court: Labour Court (Ireland)

Labour Court (Ireland)

FULL RECOMMENDATION

PW/18/3

DETERMINATION NO.PWD1820

ADJ-00006991 CA-00009045-001

PARTIES:

The Grove After School Care (Management Company) Ltd

and

Michele O'Sullivan

DIVISION:

Chairman: Mr Hayes

Employer Member: Mr Murphy

Worker Member: Ms Treacy

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision No ADJ-00006991.

BACKGROUND:

2 2. This is an appeal of an Adjudication Officer's Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 11 April 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:

DETERMINATION:

3 Ms Michelle O'Sullivan (the Complainant/Appellant) was employed by The Grove After School Care (Management Co) Ltd (the Respondent). On 12 January 2017 she initiated a complaint under section 41 of the Workplace Relations Act 2015 in which she alleged that the Respondent made an unlawful deduction from her wages contrary to section 6 of the Payment of Wages Act. The adjudication officer decided that the complaint was presented outside the statutory time limit and declined jurisdiction in the case.

4 The Complainant is appealing under section 44 of the Workplace Relations Act 2015 (the Act) against that decision.

5 The adjudication officer delivered her dicsion in the case on 5 December 2017.

6 The Complainant appealed against that decision to this Court on 16 January 2018.

7 The case came on for hearing before the Court on 11 April 2018.

The Law

8 Section 41 of the Workplace Relations Act 2015 states

9 41. (1) An employee (in this Act referred to as a "complainant") or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

10 Section 41(6) of the Act states

11 (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.

12 Section 41(8) of the Act states

13 (8) 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.

14 In Labour Court Determination DWT0338 CementationSkanska (Formerly Kvaerner Cementation) v Carroll the test for extending time 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...