UDD1610

The Appellant contended that he had made out sufficient grounds to justify an extension of time and appealed the matter to this Court. The case came on for hearing on 1 April 2016.

Background

The Respondent operates a four star hotel in Gorey, Co Wexford. The Complainant commenced employment with the Respondent on 16 June 2003. His employment terminated on 11 April 2014. The Complainant claims that he was constructively dismissed by the Respondent.

The Complainant submits that he attempted to resolve his dispute with his employer initially through direct engagement and subsequently through correspondence sent by his solicitor. He states that, to this end, the solicitor first wrote to the Respondent on 27 August 2014 seeking resolve the matter. He again wrote on 1 October 2014 and this letter was followed by two further letters dated 14 October 2014 and 12 November 2014. When no reply to those letters was forthcoming the Complainant, on 20 January 2015, submitted a complaint to the Rights Commissioner under the Act.

The Respondent states that it replied to the Complainant on 25 September 2014 and again on 12 December 2014. It denies that it received any of the letters the Complainant alleges were sent by his solicitor after the first one of 27 August 2014. It denies the complaint of constructive dismissal. It submits that the Complainant resigned from his post.

The Respondent objects to the Complainant’s request for an extension of time arguing that no exceptional grounds for the delay in bringing proceedings have been made out by him. It submits that the Court he has not met the statutory test for extending time and accordingly the Court cannot accede to the request even were it minded to do so.

Position of the Parties

Complainant’s Position

The Complainant submits that he was substantively dismissed by his employer. He submits that he had hoped to resolve the dispute amicably through direct engagement with the Company. When this proved ineffective he engaged the services of a solicitor to try to bring the matter to an amicable end. It was only when these measures proved ineffective he felt he had no option but to commence formal proceedings under the Act. He submits that the efforts he made to resolve the dispute were undertaken in good faith. He submits that the time he spent trying to find an amicable resolution to the dispute through direct engagement with his employer and through his solicitor amounts to exceptional grounds for the delay in bringing formal proceedings under the Act. He submits that once it became clear that the Respondent was not willing to work out an amicable settlement he did not delay in bringing proceedings under the Act.

Respondent's Position

The Respondent’s position is that the Complainant terminated his employment on April 11 April 2014. That he delayed commencing proceedings until 20 January 2015 some 9 months later and three months outside the statutory time limit. It submits that at all times it maintained a consistent position with the Complainant and set it out in writing on 25 September 2014 in response to correspondence from the Complainant’s legal representative. It submits that the Complainant was in no doubt from that date that the Respondent was not prepared to advance the matter through direct engagement. It submits that he was at that time within the statutory time limit to commence proceedings under the Act. He chose not to do so and has set out no good ground for delaying a decision to do so beyond that date.

The Respondent submits that the Court must apply the well-established statutory test for extending time set out in the Act and that the Complainant has failed to meet that test.

Findings of the Court

The Court finds that the Complainant terminated his employment on 11 April 2014. It makes no finding as to whether that was by way of voluntary resignation or constructive dismissal. He submitted a complaint to the Rights Commissioner on 20 January 2015.

The Act requires that a complaint under the Act be commenced within six months of the date of dismissal unless there are exceptional circumstances for delaying the commencement of proceedings beyond that time.

In this case the Complainant delayed the commencement of proceedings for a further three months and is asking the Court to determine that the exceptional circumstances operated to cause that delay and that they fully justified it.

The basic ground for the delay advanced by the Complainant is that he endeavoured to bring about an amicable resolution to the dispute through direct engagement with his employer and subsequently through his solicitor. He submits that these efforts constitute exceptional grounds for the delay in bringing proceedings under the Act.

The Court has given careful consideration to this submission. The Court finds that the Complainant’s solicitor wrote to the Respondent on 27 August 2014 seeking to agree a settlement of the matters in dispute. By 1 October he was aware that there was no prospect of advancing matters through direct engagement. Instead of commencing proceedings under the Act his solicitor again corresponded with the Respondent seeking a settlement. Those letters were dated 14 October, 12 November and again on 15 December 2014. While the Respondent denies receiving all of those letters the Complainant is relying on them to make out his case.

Taking that case at its height the Complainant has not demonstrated any basis for delaying the commencement of proceedings under the Act. He has presented no evidence of engagement by the Respondent with these efforts to find a settlement short of commencing proceedings under the Act. Accordingly he was not engaged in an ongoing process to agree settlement terms with the Respondent. Indeed it was clear from a very early stage that the Respondent was not prepared to make any concession to the Complainant and said as much in correspondence sent to his solicitor in September 2014. While the Complainant denies receiving that letter until December 2014 that does not help his cause as it is clear that there was no other correspondence from the Respondent to the Complainant that could lead him to form the view that settlement talks were ongoing or in prospect. Accordingly the Complainant had no basis for delaying the commencement of proceedings under the Act beyond the statutory time limit.

Determination

The Court determines that no grounds for an extension of time have been made out by the Complainant. The Recommendation of the Rights Commissioner is affirmed. The appeal is not allowed. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
12th May, 2016.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.