DWT1254

The Complainant submitted that after he was made redundant he engaged in discussions with the Respondent and had a belief that the issues between them could be resolved amicably. It was only at a very late stage that he formed the opinion that an amicable settlement was unlikely. It was at that stage that he began to prepare his documents for submission to the Labour Relations Commission under the Organisation of Working Time Act. The time limit for making a claim expired for the Complainant on 17^thJanuary 2010. When the deadline for make a complaint under the Act approached he phoned the LRC and was told that a late application would be accepted if it was received on Monday 18^thJanuary 2010. He did not identify the person with whom he had this conversation. Furthermore he submitted that the weather at that time was very severe and that he was in a remote area of the Country with very difficult access to the postal services. He submits that this factor should be taken into account. Relying on the Determination of the Court in Cementation Skanska and a Worker (Determination No 0426) he submitted that the Court should exercise its discretion under Section 27(5) of the Act and allow an extension of time in this case.

Respondent’s Position

The Respondent submits that the Complainant had no expectation that the matter could be resolved amicably. It submits that there was no meeting between the Complainant and the Respondent from the date of the redundancy until the complaint was submitted to the Rights Commissioner. Accordingly there was no possibility of a settlement of the issues in dispute.

The Respondent further submits that the Complainant sought advice on the matter from either NERA or the Labour Relations Commission. Having sought such advice, irrespective of its quality or accuracy, he cannot now rely on the provisions of Section 27(5) of the Act.

The Respondent submitted that the Complainant had failed to show a causal connection between “explanation and justification” in this case.

Findings of the Court

The Law

• “Section 27 of the Act provides as follows

  (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

  (5) Notwithstanding subsection (4), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

  On the basis of the evidence presented to the hearing I find that the complaint was presented to the rights commissioner on 18^thJanuary 2010 and coversr the period commencing 19^thjuly 2009. I am not satisfied that the reasons given by the claimant constitute reasonable cause for the delay in presenting his complaint following termination of his employment when he knew that the employer had not paid him for the leave that he claimed was carried over from previous year/s. In the circumstances I am not extending the time period covered by the complaint. I find that the complaint is statute barred.”

Applying that test in this case the reasons offered by the complainant were that

• 
  1.He expected to reach an amicable settlement on the issues in dispute with the respondent and

  2.The inclement weather prevented him from posting the complaint forms in good time to reach the LRC in time and

  3.He was given to understand that the LRC would accept the late submission of the Complaint.

The Court finds that there was no reasonable expectation at any time that the issues in dispute would be settled between the parties. There was no ongoing contact between the parties in relation to these matters. Indeed no meeting between the parties took place between the date the complainant was made redundant and the date on which the complaint was submitted to the Rights Commissioner.

The inclement weather did not militate in any especial manner against this complainant. Many complainants were affected by the inclement weather but nevertheless submitted their complaints in time to the Rights Commissioner. The complainant says he was in a remote part of the Country. However he had managed to make his way there during the bad weather but had not managed to submit his complaint to the Court through a postal system that continued to function during that time.

The Court was not provided with any evidence to support the complainant’s submission that he was advised by the LRC that his late complaint would be accepted.

Determination

The appeal is not well founded. The decision of the Rights Commissioner is upheld. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
17th April, 2012.______________________
AH.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.