FACTS

Mr McDermott is a medical consultant in Connolly Hospital, Blanchardstown, Dublin. He is employed pursuant to a consultant's contract dated 2008. His contract of employment provides for incremental salary increases from 2009 onwards. All parties accept that the salary increases were not paid. The reason why the sums were not paid to Mr McDermott related to the state of the economy and the requirement for a reduction in the overall public sector bill. 

HISTORY OF PROCEEDINGS

On 16th June 2011, Mr McDermott issued a complaint under the Payment of Wages Act 1991 (“the Act”) alleging that the HSE had made unlawful deductions between January and June 2011. The HSE defended the case on the basis that the claim was statute barred, as the decision not to pay the salary increases dated back to 2009. The Rights Commissioner disagreed and held that he had jurisdiction to hear the complaint but held against Mr McDermott.

Mr McDermott appealed the decision to the Employment Appeals Tribunal. Again, the time within which to issue a complaint under the Act arose. This was dealt with as a preliminary application. The EAT rejected the allegations that the complainant must lodge their complaint within six months of the first deduction or non-payment. It held that a new cause of action arose in respect of every contravention of the legislation against an employer.

The HSE appealed the decision of the EAT to the High Court on a point of law. 

DETERMINATION

The Act prohibits the unlawful deduction by an employer from an employee's salary. A time limit of "6 months beginning on the date of the contravention to which the complaint relates" is established in the Act to bring a complaint to the Rights Commissioner (emphasis added). This may be extended to 12 months in “exceptional circumstances”.

The Court looked at the meaning of "contravention" in particular. Hogan J noted that there was no special meaning ascribed to the word and in the circumstances "it must be given its ordinary, natural meaning". The Court noted that the language in the Act went further when read in conjunction with "date of the contravention to which the complaint relates". Hogan J held that for the purpose of the limitation period, everything turned "on the manner in which the complaint is framed by the employee".

The Court provided the following helpful examples to highlight the significance of how the complaint is presented and its relevance to the 6 month time limit:

a. A complaint regarding a deduction on a monthly basis from January 2010 to June 2014 and presented to the Rights Commissioner for deductions taken from January 2014 to June 2014 is valid.

b. A complaint regarding a deduction from January 2010 onwards and presented to the Rights Commissioner in June 2014 is out of date.

The distinction is summarised in the conclusions of the Judge, namely, the EAT was correct in its finding that the claim was not statute barred as "critically, the complaint in the present case related to a period of time (January 2011 to June 2011) which was presented to the Rights Commissioner on 16th June 2011 within the six month time limit in respect of this particular complaint."

The case has been returned to the EAT to address the substantive element of the appeal. 

LEGAL REVIEW

1. The time limits established by various pieces of legislation within which to bring a complaint must always be carefully considered. Although not considered in this case, it should be borne in mind that the threshold to meet the standard of "exceptional circumstances" extending the time within which to bring a complaint under this Act from six to twelve months is extremely high.

2. A contravention under the legislation may be ongoing over an extended period of time. A complainant does not lose the right to issue a claim simply because it has been ongoing for a lengthy period. If a new contravention occurs every month as was the case in this situation, the complaint crystallises to the six months preceding the making of the complaint, but only if the complaint is issued in such precise terms.