Bringing Claims Out Of Time*

Bringing Claims Out Of Time

In case ADJ19604 the AO dealt with a complaint about the issue relating to the payment of wages cover the period from the 24th April to November 2018 and had been received in the WRC on the 4th February 2019. The employee sought payment for the full period.

The AO stated that the time limit for submitting claims to the WRC as set out in Section 41 of the Workplace Relations Act 2015 is six months. The case of HSE –v- McDermott 2014 IHC331 is a case where the High Court considered in detail the wording of the time limits in payment of wages cases at paragraph 14 & 15 stated;-

“…the key question is the “date of contravention to which the complaint relates”. In order words, time runs for the purposes of the act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates” as the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided.”

For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employee had been unlawfully making deductions for a 3 year period, then provided that the complainant which has been presented relates to a period of 6 months beginning “on the date of the contravention to which the complaint relates, the complaint will nonetheless be in time.”

This is an important restatement of the law by the AO in this case. There are cases going before the WRC where some AO’s are contending that matters relate to when a first contravention occurred. This is absolutely incorrect. The AO in this case is correct. The issue is that if a claim is properly framed limiting the claim to 6 months then in those circumstances even if the deduction had been made and commenced years previously and was continuing the employee can bring a claim for those 6 months. In certain circumstances if the employee wishes to go back further it is advisable to issue a second complaint for a further period of 6 months and seek an extension of time. We would strongly advise colleagues against bringing claims in excess of 6 months without bringing a second claim for the second period of time.

Issues sometimes arise also as regards ignorance of the law. The AO in this case properly set out the decision of the Labour Court in Patrick Hoare & Sons Limited and Liam Donnelly where the Labour Court stated it must follow the dictum of Laffoy J in Minister for Finance and CPSU & Others 2007 18ELR36 to the effect that ignorance of one’s legal rights cannot in law constitute a reasonable cause for not observing a statutory limit.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

Richard Grogan

Author Richard Grogan

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