DWT1720

Background

The complainant was employed by the respondent between June 2014 and June 2017 when his employment terminated. He presented a complaint to the Workplace Relations Commission alleging that the respondent had contravened the Act in relation to his employment in respect to the following: -

• 1)Not affording him breaks in line with the requirements set out in in s(12) of the Act
  
  2)Not providing him with at least 11 hour rest period as provided for in s(11) of the Act
  
  3)Not providing him with a premium for Sunday working or not providing a premium that could be regarded as reasonable as required under s(14) of the Act
  
  4) Not providing him with all of his annual leave in the statutory leave year 01/04/2015 to 31/03/2016 as required under s(19)(1) of the Act
  
  5) Not providing him with two unbroken weeks of paid annual leave in the leave year referred to at 4) above, in contravention of s(19)(3) of the Act
  
  6)Not providing him with annual leave payments in advance of being granted annual leave and not taking Sunday premiums into account in the calculation of payments in respect of annual leave in contravention of s(20)(2) of the Act
  
  7) Not including a Sunday Premium in the amount paid to him in respect of public holiday payments for Public Holidays falling in August 2016 and October 2016 in contravention of s(22)(1) of the Act
  
  8) Not making payments to him in respect of the October bank holiday 2016 until after the hearing before the Adjudication Officer contrary to s(21) of the Act.

Preliminary Issue Arising

It is common case that in the six months preceding the initiation of the within complaint the complainant was absent from his employment due to illness. It follows that any contravention of the Act that may have occurred in relation to the complainant could only have occurred more than six months prior to the date on which his complaint was referred to the WRC.

Section 41(6) of the Workplace Relations Act 2015 provides as follows in relation to the limitation of actions pursuant to certain employment enactments, including the Act: -

“(6)Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Prima facie,any cause of action that the complainant may have had under the Act was extinguished by the time his complaint was presented. However, subsection (8) of s.41 of the Act of 2015 permits an Adjudication Officer to enlarge time by a further six months’ where reasonable cause for a delay is shown.

The decision given at first instance did not address the time limit issue identified above. It is, however, agreed between the parties that the time limit was adverted to by the respondent at the hearing and that the complainant asked the Adjudication Officer to extend time pursuant to subsection (8) of s.41 of the Act of 2015. However, it appears that the Adjudication Officer proceeded to consider the substance of the complainant’s complaint without having ruled on the time limit point. On that account, the complainant’s representative submitted that, by implication, the Adjudication Officer had granted an extension of time on foot of the complainant’s application in that regard. The complainant further submitted that no appeal was taken against the decision to grant an extension of time in consequence of which that matter cannot be reopened in the appeal. For reasons that follow the court does not accept that submission.

In the course of his submissions, the complainant’s representative also argued that as the Respondent had not appealed the Adjudication Officer's decision, the issue on the time limit could not be opened in this appeal. In support of that proposition he relied on a passage in the Judgment of Laffoy J inMinister for Finance v Una McArdle[2007] 21 I.L.R.M. 438. Reliance was also placed on the decision of this Court in Determination EDA1637Public Appointments Service and Cillian Flynn.

The respondent submitted that the time limit was in issue in the appeal and that it should be considered by the Court.

Discussion

It is clear that in the absence of an extension of time pursuant to s.41(8) of the Act of 2015 the within claims cannot succeed. In these circumstances, it is appropriate to consider if the time limit issue can be considered by the Court in the appeal and if so, whether the complainant can be granted an extension of time so as to bring his complaints within the period cognisable by the Court.

The appeal is by way of ade novorehearing of the case. In Determination EDA 1637Public Appointments Service and Cillian Flynnthis Court explained the nature of such an appeal by reference to the decision of Clark J, (as he then was) inFitzgibbon v Law Society[2014] IESC 48. Here the Court stated: -

• “Clarke J of the Supreme Court explained with commendable clarity the principal characteristics of a de novo appeal in his judgment in Fitzgibbon v Law Society [2014] IESC 48:
  
  “4.1 Whatever may be the merits of the continuing use of Latin phrases, I am not sure that there is an exact translation of the term "de novo" which conveys the precise type of appeal with which I am now concerned. That term has a sufficient usage so as to make it convenient to continue to rely on it. While the phrase "full re-hearing" may convey the extent of such appeals the term "re-hearing" can have different meanings.
  
  4.2 It seems to me that the critical characteristics of a de novo appeal are two fold. First, the decision taken by the first instance body against whose decision an appeal is brought is wholly irrelevant. Second, the appeal body is required to come to its own conclusions on the evidence and materials properly available to it. The evidence and materials which were properly before the first instance body are not automatically properly before the appeal body. It seems to me that, by defining an appeal as a de novo appeal, any legally effective instrument necessarily carries with it those two requirements.
  
  4.3 However, the matter does not end there. It is sometimes argued that, by providing for a de novo appeal, what happened at first instance becomes entirely irrelevant and, indeed, inadmissible. That is not necessarily the case. First, it is important to recognise that the process at first instance may narrow the issues which truly remain alive in whatever adjudicative proceedings are under consideration. To take a simple example from the appellate structure of the courts, there is available what is in substance a de novo appeal to the High Court from almost all civil decisions of the Circuit Court. The High Court judge considers the case afresh on the basis of the evidence presented on the appeal and without attaching any weight to the decision made by the Circuit judge. However, what happened in the Circuit Court is not, in those circumstances, necessarily entirely irrelevant. The pleadings which were exchanged pre-trial in the Circuit Court may well have narrowed the issues between the parties so that, at least in the absence of leave to amend, the issues remain thus narrowed on any appeal. An appeal may not, by its terms, extend to the entirety of the decision made at first instance so that, in the example of an appeal from the Circuit Court to the High Court, the appeal may be brought only against the quantum of an award of damages made by a Circuit judge and not against that judge's finding on liability.
  
  4.4 Second, and apart from such matters of form and process, evidence given in the first instance proceedings will not, necessarily, be entirely irrelevant to the process on appeal. It seems to me that the default position, in the absence of any specific rule to the contrary, must be that, in the case of a de novo appeal, it remains for the parties to again present to the appellate body whatever evidence or materials may be considered necessary for their case. Likewise, if, and to the extent that, the process may be inquisitorial, then, again in the absence of rules to the contrary, the inquisitorial process must start afresh before the appellate body.
  
  4.5 However, there are obvious exceptions to that position even in the absence of specific rules. First, it is always open to a party to question the credibility of an account being given or a position being taken on an appeal by reference to evidence given or a position taken at first instance. Just as a previous inconsistent account can always be put to a witness in court proceedings, so also can a previous inconsistent account given at first instance be put to a witness at a de novo appeal hearing for the purposes of testing the credibility of any new account given. It will, of course, be a matter for the appellate body to form its own judgment on the credibility of the new account in the light of the extent to which any difference may be established between the account given to that appellate body and the account given to the first instance body and also having regard to any explanation given for any change of position.
  
  4.6 Likewise, it is always possible to place before any adjudicative body evidence of previous admissions made by any party against whom an adverse finding on appeal might be made. In the law of evidence as applied in the courts, previous admissions amount to a well-recognised exception to the hearsay rule. It seems to me that the default position, in the absence to any rule to the contrary, must be that an admission, made by a party at a first instance hearing or otherwise made during the first instance process, can be the subject of evidence at a de novo appeal. It is not that the party concerned is, necessarily, bound by an admission previously made. It is, on a de novo appeal, a matter for the appellate body to make its own mind up based on the evidence and materials before it. However, just as an admission made by a party against its own interest outside the context of hearings altogether can be the subject of evidence, so also can a similar admission made at first instance be the subject of evidence. The weight to be attached to that evidence in the overall assessment of the issues before the appeal body will, of course, be a matter for it.
  
  4.7 In summary, therefore, it seems to me that the use of the term "de novo appeal" or similar terminology, carries with it a requirement that the appellate body exercise its own judgment on the issues before it without any regard to the decision made by the first instance body against whom the appeal lies.
  
  
  4.8 In addition, and in the absence of any specific rules to the contrary, the default position will be that it will be necessary that all materials on which the appellate body is to reach its adjudication are properly re-presented to that body in whatever form may be appropriate to the type of proceedings concerned. Where the proceedings involve oral evidence, then witnesses will have to be called again. Where the proceedings involve enquiries by the decision maker then those enquiries will have to be made afresh.
  
  4.9 However, even in the absence of specific rules, that latter proposition is subject to some qualification. The process at first instance may have reduced the scope of issues which are properly before the appeal body. Likewise, that scope may be influenced by the terms of any appeal brought. Furthermore, there may be circumstances, such as those which I have identified, where statements made, evidence given or positions adopted at the first instance hearing may, in themselves, be properly admissibleas part of the appellate process.”

• If a complaint is out of time and thus fails to satisfy a condition precedent, and remains so found after inquiry, then it cannot be said to have been “lawfully referred” to the Tribunal, such that it may properly be investigated for redress purposes (see para. 19 infra).

• 22. It has not been suggested, nor could it be, that the outer limit of the six month period within which “the case” seeking redress must be lawfully referred to the Tribunal (s. 77(1) of the 1998 Act) can, as a matter of discretion, be extended other than as above noted, even where the complainant is a lay individual and is one entirely unassisted by legal representation. In addition, the statutory measure does not operate as a defence point or its equivalent only (see para. 13 supra). It must therefore be treated as a condition precedent to the exercise of the Tribunal’s jurisdiction and cannot be stood down, save in accordance with the provisions of the Act. Accordingly, there will be cases where, because of this time period, evidence is excluded as of itself being the basis of discrimination for redress purposes. This simply implements legislative policy, presumably enacted having regard to the varying and at times competing interests involved. [emphasis added]

Extension of Time

The Complainant case

The complainant’s application for an extension of time, as put forward by his representative Mr Novak, is that he was on sick leave from 8^thApril 2016 until he finished his employment in June 2017. The substance of his position is that an extension should be granted to enable the cognisable period for the purposes of his claims to run from 6^thDecember 2015 to 5^thDecember 2016. It was submitted that the complainant was unaware of his statutory entitlements under the Act as his contract of employment was silent in relation to these matters He relied upon the decision of the Court of Appeal inJ. McE. and The Residential Institutions Redress Board[2016] IECA 17 that his state of knowledge at the material time is a factor to be taken into account in considering his application.

The Respondent’s case

The respondent’s representative told the Court that it had received correspondence from Mr Gibbon’s legal representative in September 2016 in relation to another matter. It was submitted that if he had capacity to give instructions in relation to one set of proceedings, he had capacity to give instruction in relation to these proceedings. On that basis it was submitted that there were no grounds on which to grant an extension of time. Ms O’Brien Williams on behalf of the respondent relied on Labour Court Determination UDD 1628Kylemore services Group and Michael Loftusin particular the following paragraph

• “The Court notes however that at around the time the Complainant instructed the CIS to make a formal request under the Data Protection Acts on his behalf and which it did. The Court takes the view that as the Complainant had 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.”in support of their position that the extension of time should not be granted.

• “ 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.”

• 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 phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] I.R. 181).”

• In s.19(5) the Oireachtas has prescribed a relatively short limitation period, albeit one which can be extended where a claimant establishes “reasonable cause”. The expression “reasonable cause”, in my view, broadly speaking connotes similar factors and, in particular, similar conduct on the part of the claimant, as is connoted by the expression “good cause” in O. 84, r. 21. In relation to the core issue which arises in the instant case, it seems to me that, given the jurisprudential backdrop in relation to prescribing time-limits generally, which I have outlined, it cannot have been the intention of the Oireachtas that failure to pursue a claim which has crystallised until a legal precedent is in place which clarifies the law and indicates that the claim is likely to be successful, followed by prosecution of the claim when the precedent is publicised, should constitute “reasonable cause” within the meaning of s.19(5). In short, while the delay on the part of the claimants in referring their claims to the Labour Court has been explained, in my view, a justifiable excuse for the delay has not been established.

J.McE v Residential Redress Board

This case concerned an application by the Applicant to file a late application with the Respondent Redress Board. The Respondent Board was established under the Residential Institutions Redress Board Act 2002. The purpose of that Act was set out in its long title as follows: -

• “An Act to provide for the making of financial awards to assist in the recovery of certain persons who as children were resident in certain institutions in the State and who have or have had injuries that are consistent with abuse received while so resident and for that purpose to establish the Residential Institutions Redress Board to make such awards and to provide for the review of such awards by the Residential Institutions Review Committee and to provide for related matters.”

Section 8 of the 2002 Act provides: -

• "(1) An applicant shall make an application to the Board within three years of the establishment day.

  (2) The Board may, at its discretion and where it considers there are exceptional circumstances, extend the period referred to in subsection (1).

  (3) The Board shall extend the period referred to in subsection (1) where it is satisfied that an applicant was under a legal disability by reason of unsound mind at the time when such application should otherwise have been made and the applicant concerned makes an application to the Board within three years of the cessation of that disability.”

• The applicant was born in 1958. He contends that he resided as a boy at St. Kieran’s Industrial School for Boys where he was abused within the meaning of s. 1 of the 2002 Act. He stated that he was illiterate and that he drank heavily during the years 2002-2005. While he was aware from radio and television of various controversies associated with child sexual abuse, he assumed that such controversies were exclusively associated with clerical sexual abuse. His case is that he was only made aware of his possible entitlement to apply for redress from the Board when his girlfriend saw an advertisement from a local solicitor in September 2011 immediately before the absolute cut-off date.

• “How different matters with regard to the actual experience of the Board with regard to the operation of the 2002 Act were. In the nature of things, these potential applicants experienced what was invariably a degrading and humiliating life experience. They were often left with rudimentary education, little life skills, an acute lack of self- confidence and severe emotional trauma. They often faced an aimless existence, with no clearly defined path of life in front of them and with many of the doors of opportunity and advancement open to the rest of society closed firmly shut in their faces. It is no wonder that many were lured by the temporary comforts of alcohol, tobacco and drugs as they struggled to cope with their existence.

  It is perhaps equally not surprising that former inmates so traumatised by their experience might allow a three year period to expire without taking any action to seek redress or, alternatively, fail to pay any or, at least, sufficient attention to the existence of the scheme during that period. The Board frankly acknowledges that this has been an all too common experience so far as potential applicants are concerned. It is in its own way a measure of the neglect and trauma which such persons must have suffered and the extent to which their horrible experiences rendered them effectively dysfunctional that experience has shown that the failure on the part of such persons to apply for redress under the scheme is not unusual.”

• 28. In this regard, the Board is accordingly given the widest possible discretion to extend time once it is satisfied that there exceptional circumstances such as would make it just and equitable that time should be extended. Contrary to what the Board appears to have required in the present case, there is no necessity to show that the exceptional factors somehow precluded the applicant from making a late application or learning of the existence of the Board or the redress scheme.

Conclusion

It is clear from all of the authorities and in particular from the decision inMinister for Finance v Civil and Public Services Union and Others,that an applicantion for an extension of time must both explain the delay and provide a justifiable excuse for the delay. In this case the Complainant’s explanation for the delay is, in effect, that he did not know what his statutory rights were until he consulted his present representative in December 2016. There is no suggestion that the Complainant was unaware of the underlying facts about which he now complains. If, as the Complainant contends (and the Court makes no finding on those contentions) he was required to work excessive hours without breaks and the other matters about which he complains occurred, he must have been aware of them at the time of their occurrence.

It appears to the Court that the Complainant must have at least suspected that the matters about which he now complains should not have been occurring. Yet, he raised no complaint with his employer and he delayed taking advice until December 2016. In the interim, he had consulted a solicitor on another matter arising out of his employment and he neglected to use that opportunity to seek advice on the subject matter of his current complaints.

The Complainant’s state of knowledge, compounded by the Respondent’s failure to provide him with all of the information required by the Terms of Employment (Information) Act 1994, is relied upon as the explanation for the delay. However, he must go further and show that, on an objective standard, the explanation proffered provides a justifiable excuse for the delay. In the Court’s view there is no basis upon which it could be concluded that the Complainant has met that aspect of the test. Accordingly, he cannot be granted an extension of time in which to present his claims

Determination

For reasons set out herein the Court is not satisfied that the complainant has shown reasonable cause for extending time pursuant to s.41(8) of the Workplace Relations Act 2015.

It follows that as the complainant had not worked for the respondent in the six months prior to the date on which his substitutive complaints were presented to the WRC the events giving rise to those complaints occurred outside the statutory time limit. Consequently, these complaints cannot be entertained.

The Adjudication Officers decision is altered as set out above.






Signed on behalf of the Labour Court



Louise O'Donnell
10 August 2017______________________
LSDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.