ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007020

Parties:

	Complainant	Respondent
Anonymised Parties	A Manager	A Service Station

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00009537-001	03/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00009537-002	03/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009537-003	03/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009537-004	03/02/2017

Date of Adjudication Hearing: 11/08/2017

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The respondent operated a service station and retail outlet.

The complainant commenced work with the respondent on May 25th 2011 and was Manager of the business and earned €567 per week.

It closed at very short notice on March 29th 2016.

Summary of Complainant’s Case:

The complainant says the owner of the business left the premises on March 24th when it had run out of petrol and diesel, promising that it would be delivered the next morning.

However this did not happen.

The owner was not contactable that weekend until he communicated by text that he was in Belfast. However, despite a further call from the owner to the complainant the following Monday the business closed the following day.

Despite extensive efforts to do so the complainant has failed to establish contact with the respondent.

He was not paid redundancy, and was owed wages and holiday pay.

Summary of Respondent’s Case:

The respondent did not attend the hearing and did not provide any explanation for his failure to do so.

Findings and Conclusions:

The complainant referred his complaint to the WRC on February 3rd 2017 as he only became aware belatedly that he could do so. This was just over ten months after his employment ceased.

Accordingly, with the exception of his complaint under the Redundancy Payments Acts, for which there is a twelve month time limit, the other complaints fall outside the six month time limit.

The only explanation which the complainant offered was that he was nt aware that he could make a complaint.

In relation to the test applied in extension of time applications under the Acts, the most commonly cited dicta are those of the Labour Court in Department of Finance v IMPACT. [2005] E.L.R. 6. In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

The complainant’s explanation does not bring it within these criteria. Therefore the cognisable period is in respect of the period from August 19th, 2016 except in respect of the claim for redundancy payments and therefore the other complaints are not within the time limits and not within jurisdiction.

However, I find that the complainant was made redundant but did not receive any payment as required by the Redundancy Payments Act.

He is entitled to a payment based on his service from May 23rd 2011 until the termination of his employment on February 3rd 2016; a period of approximately 4.75 years.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I uphold complaint CA-00009537-001 under the Redundancy Payments Acts 1967. The complainant is entitled to a redundancy payment based on is service from May 25^th 2011 to March 29^th 2016 subject to his having been in insurable employment throughout that period.

However, for the reasons stated above I do not uphold complaints CA-00009537-002, (Minimum Notice and Terms of Employment Act, 1973) or either of the complaints under the Organisation of Working Time Act, 1997; CA-00009537-003, or CA-00009537-004.

Dated: 25 August 2017

Key Words:

Redundancy, time limits.