FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : KYLEMORE SERVICE GROUP (REPRESENTED BY ADVOKAT COMPLIANCE LIMITED) - AND - MICHAEL LOFTUS (REPRESENTED BY DUBLIN NORTHWEST CITIZENS INFORMATION CENTRE) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Recommendation No. R-158171-UD-15/DI.
BACKGROUND:
2. The Worker appealed the Recommendation of the Adjudication Officer to the Labour Court in accordance with Section 9(1) of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on 16th September 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal under Section 9(1) of the Unfair Dismissal Acts 1977 – 2015 (the Act) by Mr Michael Loftus (the Complainant) against a decision of an adjudication officer ref no R-158171-UD-15/DI in which he refused to extend time for the bringing of proceedings under the Act. He accordingly decided as follows
“… as the complaint was presented outside the time limit set down in s8.(2) (a) of the 1977 Act, the complaint is statute barred and a Rights Commissioner has no jurisdiction to hear this complaint.
The Complainant appealed against that decision to this Court on 15 May 2016. The case came on for hearing on 16 September 2016.
Background
Kylemore Services Group (the Respondent) employed the Complainant initially as a chef and subsequently promoted him to the role of manager in one of its establishments. A fellow employee made complaints to Management concerning his behaviour towards her. It conducted an investigation into the complaints and decided to summarily dismiss the Complainant from its employment for on 21stJuly 2014.
The Complainant was at that time undergoing difficulties in his personal life. He was suffering from depression and undergoing treatment under the care of his medical advisors. He was also going through divorce proceedings which resulted in him being made homeless on or about 4 June 2014. He engaged with the relevant housing authorities and was finally housed in December 2014. He contacted the Citizens Information Service (CIS) who gave him information regarding his options under the Unfair Dismissals Act 1977. As a result of those advises it made several efforts to agree a settlement with the Respondent regarding the termination of his employment. Those discussions took place between October and the first week in December 2014.
On the 9thDecember 2014 the CIS Advisor told the Complainant that the clock was running on the time left to bring a complaint under the Unfair Dismissal Act. The Complainant told the Advisor that he was unwell and would attend the centre when he was able to do so.
No further action was taken by the CIS or by the Complainant before the six months statutory time limit under the Act expired.
Complainant’s Case
The Complainant submits that he was homeless and ill and incapable of attending to employment related matters within the statutory time limit. He submits that he attended to them when he recovered and at the first opportunity to do so.
Respondent’s Case
The Respondent submits that the Complainant had contacted the CIS and had initiated proceedings under the Data Protection Act within the statutory time limit. It submits that as his personal circumstances did not prevent him from commencing proceedings with the assistance of the CIS under that Act he has no grounds for seeking an extension of time under the Unfair Dismissals Act 1977 on which he was being advised by the same CIS advisor.
Findings of the Court
The Law
- Section 8(2) of the Act states
(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be—
(a) within the period of 6 months beginning on the date of the relevant dismissal, or
(b) if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,
Exceptional Circumstances was addressed by the EAT inChristopher Byrne (claimant) v P.JQuigley Ltd (respondents)in the following terms
- (1) The words ‘exceptional circumstances’ are strong words and should be contrasted with the milder words ‘reasonably practicable’ in the claimant's written submission or ‘reasonable cause’ which permit the extension of time for lodging a redundancy claim under section 12(2)(b) of the Redundancy Payments Act, 1971. ‘Exceptional’ means something out of the ordinary. At the least the circumstances must be unusual, probably quite unusual, but not necessarily highly unusual.
(2)(a) In order to extend the time the Tribunal must be satisfied that the exceptional circumstances ‘prevented’ lodging the claim within the general time limit. It is not sufficient if the exceptional circumstances cause or triggered the lodging of the claim.
(2)(b) It seems to follow that the exceptional circumstances involved must arise within the first six months, ‘the period aforesaid’. It they arose later they could not be said to ‘prevent’ the claim being initiated within that period.
In this case the Complainant was summarily dismissed on 21 July 2014. The six month statutory time limit expired on 20 January 2015.
The Complainant relies on his homelessness and his mental health problems as the reason for the delay in bringing proceedings under the Act. However the Complainant was housed in December 2014 and had the capacity to sign a tenancy agreement on 19 December 2014. Furthermore he had been advised on 9 December 2014 by the CIS that the statutory time limit for bringing proceedings under the Act was fast approaching. However he did not instruct it to file a complaint under the Act.
The Court notes however that at around that time the Complainant instructed the CIS to make a formal data request under the Data Protection Acts on his behalf and which it did. The Court takes the view that as the Complainant had the capacity to issue those instructions there is no reason to find that he did not have equal capacity to issue instructions to the CIS to file a complaint under this Act on his behalf with the WRC.
The Court accordingly finds that the evidence before it would not support a finding that the complainant’s health or housing status “prevented” him from lodging a complaint within the statutory time limit. The evidence before the Court discloses that the Complainant, though clearly in difficult circumstances, was managing his affairs and was capable of giving instructions to the CIS where it suited him to do so. It also discloses that he engaged competently with the Civil Courts, housing agencies and with the health services.
In those circumstances the Court finds no merit in the Complainant’s contention that he was “prevented” from lodging a complaint under the Act within the statutory time limit.
Determination
The Court rejects the appeal and affirms the decision of the Rights Commissioner/Adjudication Officer.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
5th October 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.