by Breda O'Malley February-03-2015 in Employment Law
The following recent judgment highlights the importance of framing a complaint to ensure it relates to a contravention which occurred within the relevant time period prior to its referral to the Rights Commissioner.
Health Service Executive v. McDermott [2014] IEHC 331
This case concerned a medical consultant who was employed by the HSE under the terms of a 2008 Consultant Contract in Connolly Hospital in Blanchardstown, Dublin 15. Clause 23 of this contract provided for a particular salary scale, with certain additional payments due on set dates. However, in June 2009, the serious economic downturn called for an immediate reduction in the public sector pay bill meaning the salary increases due from June 2009 onwards were not paid to the Respondent, or to other consultants.
Two years later, on 16 June 2011, the Respondent referred a claim to the Rights Commissioner under the Payment of Wages Act 1991 (the Act), maintaining that his pay had been unlawfully deducted between 1 January 2011 and 30 June 2011. At a hearing before the Rights Commissioner, the HSE contended that Mr McDermott’s complaint was time-barred as it was argued his “cause of action” emanated from a decision of the then Minister for Health and Children, Mary Harney, in 2009 not to sanction increases that had otherwise been scheduled under the contract. In a decision issued in January 2012, the Rights Commissioner rejected the HSE’s argument that the claim was time-barred. He then proceeded to consider the substance of the Respondent’s case, but in that respect found against him.
The Respondent appealed the decision to the Employment Appeals Tribunal (EAT) where once again the issue concerning the time limit arose as a preliminary issue. The EAT rejected the argument advanced by the HSE that a complainant must lodge his complaint within six months from the date of the first non-payment of an increase. It instead took the view that a cause of action arises with each and every contravention and that an employee has six months from every such contravention to make a claim against his employer.
Decision of the High Court
The HSE appealed to the High Court on a point of law against the correctness of the EAT ruling on the preliminary issue. During the Hearing, the Court considered the proper interpretation of Section 6 (4) of the 1991 Act which prescribes the following time limit for claims before the Rights Commissioner: “A Rights Commissioner shall not entertain a complaint under this section unless it is presented to him within the period of six months beginning on the contravention to which the claim relates…”
Submissions were made to the Court on behalf of both parties regarding the correct interpretation of section 6 (4). Counsel for the HSE contended that the construction of section 6 (4) as adopted by the EAT would lead to “an absurd situation” where there was, in effect, no time limit. In giving his judgment, Mr Justice Hogan found against the HSE and held that every distinct and separate breach of the Act amounts to a “contravention” of the legislation. Importantly, he noted that time runs not from the date of any particular contravention, but rather from the date of the contravention “to which the complaint relates”. Therefore, for the purposes of the limitation period, everything turns on the manner in which the complaint is framed.
Critically, in this case, the Respondent’s complaint was framed with regards to the period between 1 January 2011 to 30 June 2011. It was presented to the Rights Commissioner on 16 June 2011, which was therefore within the six-month time limit. Had the Respondent’s claim been framed, for example, in respect of the period ‘1 January 2010 onwards’ it would have fallen foul of section 6 (4) of the Act.
Mr Justice Hogan went on to dismiss the appeal brought by the HSE on the preliminary issue and returned the matter to the EAT to consider the merits of the substantive complaint.
Practical Implications of the Decision
This decision makes it clear that for the purposes of the time limit prescribed by Section 6 (4) of the Act, each and every breach of the Act will be considered a “contravention”. However, this case highlights the importance of framing the complaint to ensure it relates to a contravention which occurred within the preceding six months of the referral to the Rights Commissioner. If the claim refers to a contravention occurring before this period, the referral will be deemed to fall foul of section 6 (4) meaning the Rights Commissioner will not have the requisite jurisdiction to hear the complaint.
If you require advice or assistance with this issue, please contact Breda O’Malley in our employment team at bomalley@hayes-solicitors.ie
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About the Author
Breda O'Malley
Breda is a partner in the Employment Law Team at Hayes solicitors.
Breda advises on the full range employment issues across a broad range of sectors, for established business clients and senior executives.