Workplace Relations Act 2015

41.

Presentation of complaints and referral of disputes

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 1or 2of 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.

(2) An employee or an employer (in this Act also referred to as a “complainant”) or, where the complainant so consents, a specified person, may refer a dispute as to the entitlements of the employee under an enactment specified in Part 3 of Schedule 5 to the Director General, and, where a dispute is so referred, the Director General shall, subject to section 39 , refer the dispute for adjudication by an adjudication officer.

(3) (a) An agency worker (in this Act also referred to as a “complainant”) within the meaning of the Act of 2012 or any trade union of which the agency worker is a member, with the consent of the agency worker, may present a complaint to the Director General that the hirer (within the meaning of that Act) of the agency worker has contravened section 11, 14 or 24 of that Act in relation to the agency worker, and where a complaint is so presented the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

(b) References to employee and employer in the subsequent provisions of this Part shall, in so far as they relate to a complaint to which this subsection applies, be construed as references to agency worker within the meaning of the Act of 2012 and hirer within the meaning of that Act respectively.

F9 [ (3A) An employer or a trade union representative of an employer affected by an agreement specified in paragraph 29 of Part 1 of Schedule 5 may present a complaint to the Director General that an employer affected by the agreement has contravened the agreement and, where a complaint is so presented, the Director General shall, subject to section 39 , refer the complaint for adjudication by an adjudication officer. ]

(4) The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of section 42 by the Labour Court.

(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.

(b) In this subsection “relevant redress provision” means—

(i) in relation to a complaint under this section of a contravention of a provision of an enactment specified in Part 1 or 2 of Schedule 5 the provision of that enactment specified in Part 1 of Schedule 6 ,

(ii) in relation to a dispute as to the entitlements of an employee under an enactment specified in Part 3 of Schedule 5 , the provision of that enactment specified in Part 1 of Schedule 6 , and

(iii) in relation to a complaint under subsection (3), paragraph 1 of Schedule 2 to the Act of 2012.

(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.

(7) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if—

(a) in the case of a dispute relating to the entitlement of an adopting parent under the Act of 1995, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

(i) the day of placement (within the meaning of that Act) or, in circumstances where no placement takes place, the date on which the employer receives the first notification of the adopting parent’s intention to take leave under that Act (whether adoptive leave or additional adoptive leave, within the meaning of that Act), or

(ii) in the case of an adopting father, the date on which the adopting mother died,

(b) in the case of a dispute relating to the entitlement of an employee under the Carer’s Leave Act 2001, it has been referred to the Director General after the expiration of the period of 6 months beginning on the date of the contravention concerned,

(c) in the case of a dispute relating to the entitlement of an employee under the Act of 1994, it has been referred to the Director General after the expiration of the period of 6 months beginning on the date on which the employer is informed—

(i) that the employee is pregnant, has recently given birth or is breastfeeding,

(ii) in the case of an employee who is the expectant father of a child, that the expectant mother of the child is pregnant, or

(iii) in the case of an employee who is the father of a child who has been born, that the child’s mother has died,

(d) in the case of a dispute relating to the entitlement of an employee under the National Minimum Wage Act 2000, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

(i) the date on which the employee obtains a statement of his or her average hourly rate of pay in respect of the relevant pay reference period in accordance with section 23 of that Act,

(ii) in circumstances where that statement is not provided having been requested by the employee to be provided to him or her, the day after the date of expiration of the time within which that statement was required to be provided by the employer in accordance with that section, or

(iii) in the case of a dispute to which section 25 of that Act applies, the date on which the employee’s hours of work were reduced or alleged to have been reduced, F10 [ ]

(e) in the case of a dispute relating to the entitlement of an employee under the Parental Leave Act 1998, it has been referred to the Director General after the expiration of the period of 6 months beginning on the day immediately following the date of the occurrence of the F11 [ the dispute, ]

F12 [ (f) in the case of a dispute relating to the entitlement of an employee under the Paternity Leave and Benefit Act 2016, it has been referred to the Director General after the expiration of the period of 6 months beginning on

(i) in the case of an employee to whom paragraph (a) of the definition of relevant parent within the meaning of that Act applies, the day of placement within the meaning of that Act or, in circumstances where no placement takes place, the date on which the employer receives the first notification of the relevant parent s intention to take leave under that Act,

(ii) in the case of an employee to whom paragraph (b) of the definition of relevant parent within the meaning of that Act applies, the date on which the employer is informed that the expectant mother of the child concerned is pregnant, or

(iii) in the case of a surviving parent within the meaning of that Act, the date on which the employer is informed that the relevant adopting parent within the meaning of that Act or mother of the child, as the case may be, F11 [ has died, and ] ]

F13 [ (g) in the case of a dispute relating to the entitlement of an employee under the Parent s Leave and Benefit Act 2019, it has been referred to the Director General after the expiration of the period of 6 months beginning on the day immediately following the date of the occurrence of the dispute. ]

(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.

(9) (a) A complaint to which this section applies shall be presented to the Director General under subsection (1) by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(b) A dispute to which this section applies shall be referred to the Director General under subsection (2) by giving notice thereof in writing to the Director General and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(c) The Director General shall cause a copy of the notice under paragraph (a) or (b) to be given to the other party to the complaint or dispute concerned.

(10) An adjudication officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in proceedings under this section or to produce to the adjudication officer any documents in his or her possession, custody or control that relate to any matter to which those proceedings relate.

(11) A person to whom a notice under subsection (10) is given shall be entitled to the same immunities and privileges as those to which he or she would be entitled if he or she were a witness in proceedings before the High Court.

(12) A person to whom a notice under subsection (10) has been given who—

(a) fails or refuses to comply with the notice, or

(b) refuses to give evidence in proceedings to which the notice relates or fails or refuses to produce any document to which the notice relates,

shall be guilty of an offence and shall be liable, on summary conviction, to a class E fine.

(13) Proceedings under this section before an adjudication officer shall be conducted otherwise than in public.

(14) The Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision (other than information that would identify the parties in relation to whom the decision was made) of an adjudication officer under this section.

(15) (a) In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, under this Part, the complainant or respondent to the complaint or dispute (including a complainant or such a respondent to whom paragraph (b) applies) may be accompanied and represented by—

(i) a trade union official within the meaning of section 11 of the Act of 1990,

(ii) an official of a body that, in the opinion of the adjudication officer, represents the interests of employers,

(iii) a practising barrister or practising solicitor, or

(iv) any other person, if the adjudication officer so permits.

(b) In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, under this Part, the complainant or respondent to the complaint or dispute may, if he or she has not yet attained the age of 18 years, be accompanied and represented by his or her parent or guardian.

(16) An adjudication officer may, by notice in writing given to the parties to a complaint or dispute to which this section applies, correct any mistake (including any omission) of an administrative or clerical nature in a decision under this section in relation to that complaint or dispute.

F14 [ (17) The Minister may, by regulations, make provision in relation to any matter relating to

(a) the presentation of a complaint, referral of a dispute or conduct of proceedings under this section, or

(b) the making of a claim for redress or conduct of proceedings under the Act of 1977,

that he or she considers appropriate. ]

(18) In this section “specified person” means—

(a) in relation to a complaint, a person belonging to a class of persons who, immediately before the passing of this Act, would have been entitled to present a complaint on behalf of the complainant concerned under the employment enactment to which the first-mentioned complaint relates, and

(b) in relation to a dispute, a person belonging to a class of persons who, immediately before the passing of this Act, would have been entitled to refer a dispute on behalf of the complainant concerned under the employment enactment to which the first-mentioned dispute relates.

F9 [ (19) In this section, references to specified person for the purposes of a complaint in relation to a provision specified in

(a) paragraph 29 or 30 of Part 1 of Schedule 5 , or

(b) paragraph 11 of Part 2 of Schedule 5 ,

shall be construed as references to a trade union representative of the person entitled to present the complaint. ]

Annotations:

Amendments:

F9

Inserted (1.08.2015) by Industrial Relations (Amendment) Act 2015 (27/2015), s. 24(b), S.I. No. 329 of 2015.

F10

Deleted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), s. 37(a)(i), S.I. No. 435 of 2016.

F11

Substituted (1.11.2019) by Parent’s Leave and Benefit Act 2019 (35/2019), s. 38(a)(i), (ii), S.I. No. 629 of 2019.

F12

Inserted (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), s. 37(a)(iii), S.I. No. 435 of 2016.

F13

Inserted (1.11.2019) by Parent’s Leave and Benefit Act 2019 (35/2019), s. 38(a)(iii), S.I. No. 629 of 2019.

F14

Substituted (1.10.2015) by National Minimum Wage (Low Pay Commission) Act 2015 (22/2015), s. 20(1)(g), S.I. No. 411 of 2015.

Modifications (not altering text):

C8

Application of section affected by Organisation of Working Time Act 1997 (20/1997), s. 18A(9) as inserted (4.03.2019) by Employment (Miscellaneous Provisions) Act 2018 (38/2018), s. 16, S.I. No. 69 of 2019.

Banded hours

[18A. ...

(9) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a failure to comply with this section shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded, and

(b) where the decision is that the complaint was well founded, require the employer to comply with this section and place the employee on the appropriate band of hours.

... ]

C9

Application of section modified (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), s. 28(1), S.I. No. 435 of 2016.

Decision under section 41 or 44 of Act of 2015

28. (1) A decision of an adjudication officer under section 41 of the Act of 2015 in relation to a dispute between an employee and the relevant employer relating to any entitlement of the employee under Part 2 or 3 (or any matter arising out of or related to such entitlement) may include such directions to the parties to the dispute as the adjudication officer considers necessary or expedient for the resolution of the dispute, and if the decision is in favour of the employee then, without prejudice to the power to give such directions, the adjudication officer may order—

(a) the grant of leave to the employee for such period as may be so specified,

(b) an award of compensation (in favour of the employee to be paid by the relevant employer) of such amount, not exceeding 2 weeks’ remuneration in respect of the employee’s employment calculated in such manner as may be prescribed by the Minister for Jobs, Enterprise and Innovation, as the adjudication officer considers just and equitable having regard to all of the circumstances, or

(c) both such grant and such award.

...

C10

Application of section affected (1.08.2015) by Industrial Relations (Amendment) Act 2015 (27/2015), s. 23, S.I. No. 329 of 2015.

Decision of adjudication officer under section 41 of Act of 2015

23. (1) This section applies to a decision of an adjudication officer under section 41 of the Act of 2015 in relation to a complaint of a contravention of—

(a) subsection (1) of section 20 ,

(b) a registered employment agreement (within the meaning of Chapter 2), or

(c) a sectoral employment order (within the meaning of Chapter 3).

(2) A decision of an adjudication officer to which this section applies shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the provision in respect of which the complaint concerned relates and, for that purpose, require the employer to take a specified course of action, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all the circumstances, but not exceeding 104 weeks’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977,

and the references in the foregoing paragraphs to an employer shall be construed, in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurs, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(3) A decision of the Court under section 44 of the Act of 2015, on appeal from a decision of an adjudication officer to which this section applies, shall affirm, vary or set aside the decision of the adjudication officer.

Editorial Notes:

E15

“Relevant redress provisions” for purposes of subs. (5) prescribed (27.07.2016) by European Union (Posting of Workers) Regulations 2016 (S.I. No. 412 of 2016), reg. 9(4).

E16

Previous affecting provision: subs. (7)(e) amended (1.08.2016) by Paternity Leave and Benefit Act 2016 (11/2016), s. 37(a)(ii), S.I. No. 435 of 2016; substituted as per F-note above.