FULL RECOMMENDATION
SECTION 8 (1), TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2012 PARTIES : KEPAK GROUP (REPRESENTED BY M P GUINNESS BL INSTRUCTED BY MR GERALD O'DONNELL, CAULSTOWN SOLICITORS) - AND - VALDOMIRO AUGUSTO ARANTES (REPRESENTED BY MR DAVID MCGRATH BL INSTRUCTED BY MS CLARE BARRY, TOM O' REGAN & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer's Decision No: ADJ-00000457
BACKGROUND:
2. This is an appeal under Section 8(1) of the Terms of Employment (Information) Acts, 1994 to 2012. A Labour Court hearing took place on 13 September 2016. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Valdomiro Augusto Arantes (the Complainant) against the Decision of an Adjudication Officer under the Terms of Employment (Information) Act, 1994 (the Act). The claim was referred to the Workplace Relations Commission on 30thOctober 2015. The Complainant’s employment terminated with Kepak Group (the Respondent) on 31stMarch 2015. The Adjudication Officer held that the complaint was out of time and accordingly statute barred.
The Complainant appealed the Decision on the basis that an extension of time had been sought. He submitted that the Adjudication Officer had agreed that he could submit a submission on his application for an extension and his Solicitor furnished such a submission. However, the Adjudication Officer stated that no submission had been submitted on behalf of the Complainant and accordingly, accepted the Respondent’s contention that the claims were out of time.
Background
The Complainant commenced employment with the Respondent as a Boner on 5thOctober 2008. He had an accident at work on 24thJuly 2012, he went out on sick leave directly afterwards and remained on sick leave until his employment was terminated by letter dated 31stMarch 2015.
The Complainant claimed that while he signed a copy of his contract of employment at the commencement of his employment, he was not provided with a copy of the contract. The Respondent furnished the Court with a copy of the Complainant’s contract of employment, signed by him on 5thOctober 2009. This contract was in both English and in the Complainant’s native language.
Preliminary Issue – Time Limit and Application for an Extension of Time
Counsel for the Respondent, Ms Mary Paula Guinness, B. L. instructed by Caulstown Solicitors, raised a preliminary issue contending that the Complainant’s complaint under the Act was referred to the Workplace Relations Commission out of time.
In reference to the Complainant’s application to extend time, Ms Guinness stated that no application for an extension of time had been made by the Complainant or his representative prior to the hearing before the Adjudication Officer. The Adjudication Officer provided the Complainant and his representative with an opportunity to submit a submission on the grounds being advanced for an extension of time. She said that she was not aware that such a submission was ever made and the Adjudication Officer in her Decision, stated that none was made.
The Court decided to hear the preliminary issue of the time limit and on the related question of whether an extension of time can be granted in accordance with the provisions of Section 41(8) of the Workplace Relations Act, 2015. It informed the parties that in the interest of efficiency of process it would issue a Determination on these preliminary matters as such a Determination could be determinative of the appeal in its entirety.
Mr David McGrath, B.L. instructed by Tom O’Regan & Company, Solicitors on behalf of the Complainant submitted that due to the Complainant’s injury and subsequent surgery he was preoccupied with his medical condition and accordingly missed the deadline for submitting his claim under the Act. Mr McGrath said that the Complainant was a foreign national and was not in receipt of legal advice until he brought his claim to the attention of his solicitor. The Complainant initiated proceedings with the Personal Injuries Assessment Board Ireland (PIAB) on 27thOctober 2015 and he referred his complaint under the Act to the WRC, at the earliest opportunity.
Conclusions of the Court on the Preliminary Matters
The Court is satisfied that the Complainant’s complaint was presented to the WRC out of time. The Complainant’s last date of employment was 31stMarch 2015. The Court is satisfied that if there was a contravention of the Act, that that date is the last date when such a contravention took place. As the Complainant’s claim was not presented to the Workplace Relations Commission until 30thOctober 2015, it was therefore one month out of time. The Court will now proceed to examine the application for an extension of time.
Section 41(8) of the Workplace Relations Act 2015, provides:-
(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.
The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination WTC0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -
- 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.
The Complainant has put forward a range of reasons to excuse the delay and to obtain an extension of time. They related, in the main, to a claim that he was medically unfit to attend to his affairs in the relevant period. He had surgery on 4thJune 2015 and was discharged home the following day. No evidence was adduced on how his medical condition impacted on his capacity to present a claim within the time limit. The Court was informed that the Complainant had been in contact with his Solicitor from mid-October 2015 and a claim was referred on his behalf to PIAB within the relevant time period. In the view of the Court this action undermines his claims concerning his medical unfitness to make a claim under the Act.
It is for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. Having considered the submissions advanced in the course of the appeal, no reason has been submitted for the delay in referring the claim under the Act. Within a short period of the deadline for submitting such a claim he sought legal advice to initiate legal proceeding against his employer and a related claim to PIAB. The Court has not been presented with any reasons to indicate that the Complainant was impaired due to a medical condition in presenting this claim within the statutory time limit. Furthermore, while the Court accepts that the Complainant may not have known of the time limit, it is well settled that ignorance of one’s legal rights and responsibilities cannot be accepted as an excuse.
Having regard to all the circumstances of this case the Court has come to the conclusion that the Complainant has neither explained the delay in initiating his claim nor has he put forward a justifiable basis upon which an extension of time could be granted in this case.
Determination
For the reasons set out herein, the appeal is disallowed and the decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
26 September 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.