ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00001568

Complaint for Resolution:

Date of Adjudication Hearing: 24th June 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Location of Hearing: Dublin

Procedure:

On the 25^th January 2016, the complainant referred a complaint pursuant to the Unfair Dismissals Act to the Workplace Relations Commission. The complaint was scheduled for adjudication on the 24^th June 2016. The complainant was represented by counsel and a solicitor. The respondent was represented by a solicitor and three witnesses attended on its behalf.

In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complainant worked for the respondent between the 12^th March 2009 to the 27^th March 2015, at which time she was dismissed on grounds of gross misconduct. The respondent dismissed the complainant following a ‘mystery shopper’ visit to the off-licence, where the complainant served alcohol to a minor. The decision to dismiss was upheld on appeal on the 21^st May 2015. The complainant asserts that the dismissal was unfair and that she has reasonable grounds for the late submission of the complaint. The respondent asserts that the complainant has not demonstrated reasonable cause and that the dismissal was not unfair.

Summary of Respondent’s Case:

Addressing the issue of reasonable cause, the respondent submitted that the circumstances referred to by the complainant do not amount to reasonable cause. They did not prevent the submission of the complaint and could not be accepted as a reason for delay. The respondent outlined that the complainant had instructed a solicitor during the appeal stage, who had engaged with the respondent on her behalf. Addressing the substantive issue, the respondent outlined that the decision to dismiss the complainant on grounds of gross misconduct was not disproportionate and within the range of reasonable responses of an employer who had acted reasonably. The respondent outlined that it engaged a consultant, a former member of An Garda Siochána, to carry out supervised mystery shopper exercises to assess whether staff adequately verified the age of the mystery shopper, in this case, a minor.

Summary of Complainant’s Case:

At the outset of the adjudication, the complainant submitted that there was reasonable cause to extend time to allow the complaint of unfair dismissal to proceed. It was acknowledged that the application was made to the Workplace Relations Commission on the 25^th January 2016, while the original decision to dismiss had been made on the 27^th March 2015 and upheld on appeal on the 21^st May 2015. The complainant outlined that a trainee solicitor had omitted to submit the complaint within time and it was submitted as soon as the omission was identified. She submitted that the threshold for submitting a late complaint had been lowered from ‘exceptional circumstances’ to ‘reasonable cause’, and that these circumstances fell within reasonable cause. The complainant referred to a series of issues arising since 2013 and that the disciplinary process in 2015 had been unfair. With regard to the events of the 20^th February 2015, she had engaged in conversation with the mystery shopper on what had been a busy night and joked with him that he was over 18 years of age. He had replied that he was over 18. The decision made to dismiss the complainant was unfair and disproportionate.

Findings and conclusions:

The complainant worked for the respondent between the 12^th March 2009 to the 27^th March 2015. She was promoted to the post of supervisor of the off-licence, a part of the respondent chain. She was dismissed on grounds of gross misconduct. The grounds of dismissal related to an incident of the 20^th February 2015, when the complainant served alcohol to a mystery shopper, a minor, who had attended the off-licence under the supervision of a security consultant. There were other disciplinary and grievance issues raised at this time and in earlier times, but given that this is a claim of unfair dismissal, what should be assessed is the grounds relied on by the respondent to the time of the dismissal.

The first preliminary issue to consider is manner in which the incident of the 20^th February 2015 arose. The complainant was working on a till on a busy Friday evening. There was a queue of customers, including the mystery shopper in question. He purchased six cans of a high profile beer. The complainant says that she joked with the customer that he was over 18, but did not verify his identification. The mystery shopper replied that he was over the age of 18. Section 37C of the Intoxicating Liquor Act, 1998 (as inserted by the Intoxicating Liquor Act, 2008) provides the legal basis for members of An Garda Siochána to send minors into premises to conduct the test purchase of alcohol. This provision was commenced on the 1^st October 2010 pursuant to S.I. 449/2010. The Department of Justice produced Guidelines on test purchasing of intoxicating liquor, dated the 1^st October 2010. They address the welfare of the test purchaser and they provide instructions to be relayed to the test purchaser. At page 9, point 4, the document states “if asked your age, state your correct age”. This is relevant as the complainant and the mystery shopper discussed his age and he stated he was aged over 18. The exercise of the 20^th February 2015 does not appear to fall within the rubric of section 37C and nor did it comply with the guidelines.

The import of these preliminary comments on the dismissal of the complainant depends on the complainant being able to show reasonable cause in relation to the late submission of the complaint to the Workplace Relations Commission. This is the second preliminary issue to address.

Section 8(2) of the Unfair Dismissals Acts, as amended by the Workplace Relations Act 2015 and other statutes, provides as follows:

            “(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 subsection (17) of section 41 of the Act of 2015) to the Director General —

                        (a) within the period of 6 months beginning on the date of the                                         relevant dismissal, or

                        (b) within such period not exceeding 12 months from the date of                                                 the relevant dismissal as the adjudication officer considers                                          appropriate, in circumstances where the adjudication officer is                                           satisfied that the giving of the notice within the period referred to                              in paragraph (a) was prevented due to reasonable cause, 

            and a copy of the notice shall be given by the Director General to the employer   concerned as soon as may be after the receipt of the notice by the Director     General.”

The complainant was dismissed on the 27^th March 2015 and this was upheld on appeal on the 21^st May 2015. The complaint of unfair dismissal was referred to the Workplace Relations Commission on the 25^th January 2016. The disciplinary procedure submitted by the respondent does not make reference to an appeal stage, or to clarify whether an employee’s dismissal is on hold pending such an appeal. In the usual course, the date of dismissal is the 27^th March 2015 and the six month limitation period is assessed from that date. Even taking the later date of the 21^st May 2015 as the date of dismissal would not have brought the claim within the limitation period provided in section 8(2)(a) of the Unfair Dismissals Acts.

As submitted by the complainant, the test to extend time to permit a claim of unfair dismissal submitted later than six months but within one year has been reduced from “exceptional circumstances” to “reasonable cause”. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” 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.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

            “It is clear from the authorities that the test places the onus on the applicant for           an extension of time to identify the reason for the delay and to establish that the             reason relied upon provides a justifiable excuse for the actual delay. Secondly, the     onus is on the applicant to establish a causal connection between the reason             proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint   would have been presented the complaint in time were it not for the intervention of       the factors relied upon as constituting reasonable cause. It is the actual delay that        must be explained and justified. Hence, if the factors relied upon to explain the   delay ceased to operate before the complaint was presented, that may undermine a    claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an   applicant, there is some limitation on the range of issues which can be taken into          account. In particular, as was pointed out by Costello J in O’Donnell v Dun     Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified           in delaying the institution of proceedings.”

The circumstances explained by counsel for the complainant are, of course, very unfortunate. The solicitors instructed by the complainant played an active role in and around the time of the complainant’s dismissal, where they engaged with the respondent on her behalf. It is through inadvertence that the claim was not submitted within six months of the complainant’s dismissal. It is fair to say that this is the nightmare scenario for any person, including professional lawyers, engaged in advocacy on another’s behalf. The issue to be determined here is whether it can amount to reasonable cause to allow a late claim to proceed.

Having considered the Labour Court authorities, I am obliged to find that the claim of unfair dismissal cannot proceed. While not making any finding as to whether her case would succeed, I fully appreciate the position of the complainant, who has a case that should be ventilated. Applying the Skanska authority, while the reason proffered on the complainant’s behalf certainly explains the reason for the late submission of the complaint, it does not excuse it. While the reason makes sense as in one understands how it can occur, it does not go so far as to excuse the nature and extent of the delay. The length of delay in this case was significantly more than a minimal one. Even if one were to find that the date of dismissal was the 21^st May 2015, the delay in this instance would be some two months after the end of the six-month limitation period. Taking these findings together, I conclude that the claim cannot proceed as it is statute-barred pursuant to section 8(2) of the Unfair Dismissals Act, as amended.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim.

CA-00002155-001

Pursuant to section 8(2) of the Unfair Dismissals Act, as amended, and for the reasons outlined above, I decide that the complainant has not shown reasonable cause to allow the claim to proceed in circumstances where the complaint was referred later than six months of the date of dismissal. The claim, therefore, does not succeed.

Dated:   10/04/2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Unfair Dismissals Acts – late submission of the claim – reasonable cause – section 8(2)(b) of the Unfair Dismissal Acts – omission by solicitor or advocate