Whelan v. Getfood Limited - Unpaid Wages, Constructive Dismissal Award

ADJUDICATION OFFICER DECISION

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Adjudication Reference: ADJ-00057292

Parties:

| **** | Complainant | Respondent |
| Parties | Paul  Whelan | Getfood Limited |

| Representatives | Self- represented. | Did not attend. |

Complaint(s):

| 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-00069583-001 | 26/02/2025 |
| Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00069583-003 | 26/02/2025 |
| Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00069583-004 | 26/02/2025 |

Date of Adjudication Hearing: 24/06/2025

Workplace Relations Commission Adjudication Officer: Máire Mulcahy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints complaint that the respond n et failed to pay his holiday entitlements contrary to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

On these dates, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties proceeded in the knowledge that hearings are to be conducted in public, decisions issuing from the WRC will disclose the parties’ identities and sworn evidence may be required.

The complainant represented himself and gave evidence under affirmation

The respondent did not attend.

Background:

| The complainant has presented a complaint of an unlawful deduction from his wages contrary to the terms of the Payment of Wages Act,1991, a complaint that he was unfairly dismissed on 5/7/2025, and a further complaint that the respondent failed to pay his holiday entitlements as required by the Organisation of Working Time Act, 1997.

The complainant was employed as an Operations Director with the respondent’s wholesale food business from 1/1/ 2023-5/7/2024.

His gross monthly pay was €12,500.

He submitted his complaint to the WRC on 26/2/2025. |

Summary of Complainant’s Case:

| CA-00069583-001. Complaint under section 6 of the Payment of Wages Act, 1991.

Preliminary point.

Time limits.

The deduction occurred on the 5/7/2024. The complaint was lodged with the WRC on 26/2/2025 . Section 41(6) of the Workplace Relations Act,2015 requires a complaint to be lodged within 6 months of the date of the contravention identified as the 5/7/2024 by the complainant.

The complainant requests that discretion as provided for in section 41(8) of the Workplace Relations Act, 2015 be exercised in his favour.

The complainant gave evidence under affirmation.

The complainant stated that the respondent failed to pay his wages over a number of weeks to the amount of €20,124 gross. He was last paid at the end of May 2024.

The adjudicator requested the complainant to submit a breakdown of the deduction and how it amounted to €20,124 to the WRC.

He states that the reason for non-compliance with section 41(6) of the Act of 2015  was due to his belief that the respondent would come good and would pay him his wages. He also mistakenly believed that the respondent was receiving medical attention. It was only after the respondent failed to answer about 15 messages from him that he decided to refer his complaint to the WRC .

CA-00069583-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant stated that he was constructively dismissed on 5/7/2024. He resigned as the respondent failed to pay his wages over a number of weeks to the amount of €20,124 gross. He was last paid at the end of May.

Preliminary point.

Time Limits.

The complainant was constructively dismissed on 5/7/2024.

He submitted his complaint to the WRC on 26/2/2025.

Section 8 (2)(a) of the Act of 1977, as amended, requires a complaint to be submitted within

“the period of 6 months beginning on the date of the relevant dismissal,”

The complainant asked for an extension to the time limits as permitted by section 8(2)(b) of the Act. The complainant asked for his complaint of constructive dismissal to be considered as the reasons for the delay in submitting his complaint meet the reasonable cause proviso as set out in section 8 (2) (b) of the Act.

The complainant gave evidence under affirmation.

The complainant seeks an extension of the time limits. He emailed and wrote to the employer on fifteen occasions seeking payment of unpaid wages. The respondent failed to reply to his messages. He hesitated to submit the complaint to the WRC as the respondent stated he was in hospital. The complainant discovered in July that this was a fabrication. His solicitor wrote on his behalf in September seeking payment of his wages but received no response. He then concluded that he should refer his complaint to the WRC.

CA-00069583-004 Complaint under section 27 of the Organisation of Working Time Act, 1997

The complainant stated that the respondent failed to pay him for 6 days of outstanding leave.

Preliminary point.

Time Limits.

The cognisable period is 27/7/2024-26/2/2025.

Section 41(6) of the Workplace Relations Act,2015 requires a complaint to be lodged within 6 months of the date of the contravention identified as the 5/7/2024 by the complainant.

The complainant requests that discretion as provided for in section 41(8) of the Workplace Relations Act, 2015 be exercised in his favour. He states that the reason for the delay was his belief that the respondent would come good and would pay him his wages and outstanding holiday entitlements at the cesser of his employment.

It was only after the respondent failed to answer about 15 messages from him that he decided to refer his complaint to the WRC. He also was misled as to the respondent’s health and did not wish to pursue him while the respondent claimed to be unwell. |

Summary of Respondent’s Case:

| CA-00069583-001. Complaint under section 6 of the Payment of Wages Act, 1991.

Though notified of the details of the hearing, the respondent did not attend the hearing.

CA-00069583-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Though notified of the details of the hearing, the respondent did not attend the hearing.

CA-00069583-004 Complaint under section 27 of the Organisation of Working Time Act, 1997

Though notified of the details of the hearing, the respondent did not attend the hearing. |

Findings and Conclusions:

| CA-00069583-001. Complaint under section 6 of the Payment of Wages Act, 1991.

I am obliged to determine if I have jurisdiction to hear this complaint.

The cognizable period for this complaint is 27/7/2024-26/2/2025.

Time Limits

Relevant Law.

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

“ 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 High Court decision in Health Service Executive v McDermott (2013) IEHC 331 compels us to take the date of the contravention as the starting point when considering the admissibility of a complaint under the Act of 1991. The deduction occurred on the 5/7/2024. The complainant submitted his complaints on 26/2/2025.

No infringements of the Act of 1991 could have occurred in the cognisable period as the complainant’s employment had ended on 5/7/2024, 3 weeks before the commencement of the cognisable period on 27/7/2024.

Section 41 (8) states:

“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 complainant asks that the section 41(8) of the Act be exercised in his favour.

In terms of section 41(8) availing the complainant, the matter of extending time where reasonable cause exists has been addressed in many decisions. In Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 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.”

Findings and conclusions on the request to extend time so as to render the contraventions occurring on the 5/7/2025 admissible.

In the instant case, the complainant’s reasons for failure to submit the complaint within the cognisable period were his misplaced belief that the respondent would pay him his wages, and the respondent’s misrepresentation about his health.

These may explain the delay, but these situations do not amount to an impediment of an order to excuse the delay, particularly given that the complainant had legal advice in September 2024, and more especially as the complainant uncovered information in July 2024 to the effect that the respondent was fabricating an illness or a period of hospitalisation.

I find that the complainant does not meet the threshold outlined in Skanska whereby the statutory timeframe within which he is obliged to refer this complaint under the Act can be expanded for reasonable cause.

Based on the evidence and precedent, I cannot find that I have jurisdiction to hear the complaint

CA-00069583-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I am obliged to determine if I have jurisdiction to hear this complaint.

Statutory Time limits.

Section 8 (2) of the Act of 1977, as amended, states

“ A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,”

The complaint was submitted 3 weeks after the statutory limit had expired, that date being the 6/2/2025. The adjudicator can extend time in accordance with section 8(2) (b) where reasonable cause for same exists.

The established test for identifying if reasonable cause exists to extend time up to 12 Months is set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 0388.There, the Labour Court determined as follows:

“ It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complainant would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

Applying this test to the circumstances of the instant case, it is necessary to establish if the reasonable cause provisions found in section 8 (2) (b) of the Act of 1977, as amended, could operate in the complainant’s favour.

There are problems with the complainant’s explanation, the complainant’s reasons for failure to submit the complaint within the cognisable period were his misplaced belief that the respondent would pay him his wages, and the respondent’s misrepresentation about his health. Yet the complainant discovered in July 2024 that the respondent had fabricated his report to the complainant of a period of hospitalisation. Equally, the complaint had legal advice available to him in September 2024 when his solicitor wrote on his behalf to the respondent seeking his wages.

I find that the complainant reasons for an expansion of the time limits do not meet the threshold outlined in Skanska whereby the statutory timeframe within which he is obliged to refer this complaint under the Act can be expanded for reasonable cause.

Based on the evidence and precedent, I cannot find that I have jurisdiction to hear the complaint

CA-00069583-004 Complaint under section 27 of the Organisation of Working Time Act, 1997

I am obliged to determine if I have jurisdiction to hear these complaints.

Statutory Time limits.

Relevant Law.

The complainant lodged his complaint with the WRC on 26/2/2025.

The cognisable period for the purposes of this complaint is 27/7/2024- 26/2/2025 as per section 41(6) of the Act of 2015. No infringements of the Act of 1997 could have occurred in this period as the complainant’s employment had ended 3 weeks before the commencement of the period.

Section 41 (8) states:

“ 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 complainant asks that the section 41(8) of the Act be exercised in his favour to consider infringements of the Act of 1997.

Discretion to extend time to hear the infringements of the Act of 1997 as per section 41(8) of the Act of 2015 must conform to the established tests as set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 and set out, already, in CA-00069583-001, a  complaint under section 6 of the Payment of Wages Act, 1991.

The complainant’s reasons for failure to submit the complaint within the cognisable period in the instant complaint, were his misplaced belief that the respondent would pay him his wages, and the respondent’s misrepresentation about his health.

I find that these reasons do not amount to an impediment of an order to excuse the delay.

I find that the complainant does not meet the threshold outlined in Skanska whereby the statutory timeframe within which he is obliged to refer this complaint under the Act can be expanded for reasonable cause.

Based on the evidence and the law, I find these complaints to be time- barred.

I find that I do not have jurisdiction to hear this complaint submitted under the Organisation of Working Time Act, 1997. |

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

| CA-00069583-001. Complaint under section 6 of the Payment of Wages Act, 1991.

I decide that I do not have jurisdiction to hear this complaint.

CA-00069583-003. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I decide that I do not have jurisdiction to hear this complaint.

CA-00069583-004 Complaint under section 27 of the Organisation of Working Time Act, 1997

I decide that I do not have jurisdiction to hear this complaint . |

Dated:   30th March 2026

Workplace Relations Commission Adjudication Officer: Máire Mulcahy

Key Words:

| Time -barred complaints. |