FTD1128

This is an appeal by Robert Cleary against the decision of a Rights Commissioner in his claim under the Protection of Employees (Fixed-Term Work) Act 2003 against the State Examination Commission. The Rights Commissioner held that the claim was presented outside the time-limit prescribed by s.14(3) of the Act. The Rights Commissioner went on to consider if time for the presentation of the claim could be enlarged pursuant to s.14(4) of the Act and decided that the Claimant had failed to show reasonable cause for the delay, as is required by that subsection. In these circumstances the Rights Commissioner held that she lacked jurisdiction to entertain the claim.

The Claimant appealed to this Court.

There is no dispute concerning the fact that the claim was presented outside the six-month time limit prescribed by s.14(3) of the Act. The only issue arising on this point is whether the time-limit should be extended in accordance with s.14(4). Apart from the issue concerning the time-limit the Respondent raised a number of other preliminary objections to the Claimant’s legal capacity to maintain the within claim. By agreement with the parties the Court decided that it would deal with the question of whether or not time can be extended by way of a preliminary ruling.

The facts material to this aspect of the case are not in dispute and can be summarised as follows: -

• 
  •The Claimant was engaged by the Respondent as an assistant examiner from 27^thMay 2009 until 8^thJune 2009 when his engagement was terminated.

  •The Claimant instructed solicitors in relation to the termination of engagement and by letter dated 12^thJune the solicitors wrote to the Respondent taking issue with its decision. The Respondent replied to the Claimant’s solicitors by letter dated 30^thJune 2009 setting out a detailed response to the issues raised.

  •The Claimant brought proceedings before a Rights Commissioner under the Protection of Employees (Part-Time Work) Act 2001. His claim was lodged on 7^thDecember 2009. The Claimant also referred a dispute to a Rights Commissioner in relation to the termination of his engagement under s.13 of the Industrial Relations Act 1969

  •Both claims came on for hearing before a Rights Commissioner on 19^thApril 2010 and were adjourned for further submission to 20^thMay 2010. By a recommendation (in the case under the Industrial Relations Act 1969) and a decision under the Protection of Employees (Part-Time Work) Act 2001, both dated 5^thAugust 2010, the claims were disallowed.

  •The Claimant appealed both the recommendation and the decision to the Labour Court. Both appeals came on for hearing before the Court on 19^thNovember 2010. On the day of the hearing the appeal under the Protection of Employees (Part-Time Work) Act 2001 was withdrawn by the Claimant. The appeal under the Industrial Relations Act 1969 proceeded but the Court did not find for the Claimant.

  •In the interim the Claimant presented the within claim to a Rights Commissioner on 8^thJune 2010, before the Rights Commissioner issued his decision.

The Claimant told the Court that in the course of the Rights Commissioner hearing the Respondent contended that he was not a part-time employee within the statutory meaning ascribed to that term. He said that he researched the relevant statutory provisions and became aware of the Protection of Employees (Fixed-Term Work) Act 2003. He formed the opinion that the points raised by the Respondent concerning his status while engaged by the Respondent would not apply if he took a case under the latter statute. He then presented his claim under that Act.

• 
  •It is the Claimant’s case that the delay in presenting his claim was caused by (a) the fact that his status as an employee was disputed by the Respondent;

  •That he was unaware of the existence of the Act of 2003

  •That he was not legally represented in presenting his claim before the Rights Commissioner.

The test to be applied in considering if a time limit can be extended on grounds of reasonable cause was set down by this Court in Determination DWT0333-Cementation Skanska and Tom Carrollas follows: -

• 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.

  The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

In this case the Claimant contends that the delay was caused because the Respondent disputed his status as an employee. Only a person employed on a contract of employment, as defined by the Act, can havelocus standito maintain a claim under the Protection of Employees (Part-Time Work) Act 2001. The Respondent claimed before the Rights Commissioner that the Claimant was engaged by it under a contract for services. It would appear that the Respondent also claimed that the Claimant was not a part-time worker within the statutory meaning.

The Protection of Employees (Fixed-Term Work) Act similarly limited in its application to persons employed on a contract of employment, which is defined by that Act in identical terms to that of the Act of 2001. In these circumstances the Court can see no logic in the Claimant’s contention that his standing would be enhanced by taking proceedings under the Act of 2003. However, the main point advanced by the Claimant is that he was unaware of the existence of the Act of 2003 until the time limit for initiating a claim under that Act had passed.

That is a classic case of pleading ignorance of the law, and on the authority of the decision of the High Court inMinister for Finance v CPSU and Ors,it cannot be accepted as constituting reasonable cause for the Claimant’s failure to lodge his claim in time.

In these circumstances the Court does not accept that reasonable cause for the delay has been shown. Accordingly the decision of the Rights Commissioner is affirmed and the appeal is disallowed.



Signed on behalf of the Labour Court



Kevin Duffy
15th November 2011______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.