UDD1755

For the reasons above, I find that the claim made pursuant to the Unfair Dismissals Act does not succeed as the complainant has less than 12 months’ service and the issues he raised with the respondent were not protected disclosures and do not fall within the ambit of section (2)(d) of the Unfair Dismissals Act.

The complainant appealed against that decision to this Court on the 30 August 2017.

Preliminary Issue

The Respondent raised a number of preliminary issues with the Court.

It firstly submitted that the complaint was submitted to the Workplace Relations Commission outside the six month time limit set out in the Act. It submits that it employed the Complainant commencing on 12 October 2015 and that his employment ended by reason of dismissal on 13 July 2016. It submits that the complaint before the Court was submitted to the Workplace Relations Commission on 17 February 2017 some seven months after the date on which the Complainant was dismissed from his employment. It further submits that the Complainant has provided no good reason for the delay in filing the Complaint within the statutory six month time limit set out in the Act. It finally submits that the Court therefore does not have jurisdiction to adjudicate on the Complaint.

The Complainant submits that he originally submitted a complaint form to the Workplace Relations Commission on 30 November 2016. He submits he at all times intended filing his complaint under the Unfair Dismissals Act. He submits that the online form he completed prevented him from selecting the Unfair Dismissals Act as the relevant legislation under which he sought to bring the Complaint. He submits that this restriction was caused by a fault on the online web system and arose because he did not have 12 months service with the Respondent when bringing the Complaint. He submits that he compensated for this by outlining his complaint in detail on the form and by characterising it as an unfair dismissals complaint. He submits that in order to submit it online he was compelled to choose a piece of legislation that enabled him to do so. That legislation was the Industrial Relations Act and he selected it for that purpose.

He submits that when he was notified on 31 January 2017 that the case was being processed under the Industrial Relation Act he immediately acted to correct the misunderstanding and submitted a correcting form on 17 February 2017. He submits that the original complaint form should be accepted by the Court as a Complaint under the Unfair Dismissals Act. He further submits that if the Court is not minded to accept that proposition it should, in all the circumstances of the case, extend time to enable the matter to be dealt with under the Unfair Dismissals Act.

The Law

Section 41(6) of the Workplace Relations Act 2015 states

(6) Subject tosubsection (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.

Section 41(8) states

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 insubsection (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.

Section 6 of the Unfair Dismissals Act states

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

Extension of Time

The Labour Court in Cementation Skanska has set out the following test to be applied in cases where a party to a complaint is seeking an extension of time

• “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 thedelay 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. 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 Court finds that the Complainant submitted a complaint form to the Workplace Relations Commission on 30 November 2016. In that form he set out the basis of his complaint indicating that he was seeking redress for unfair dismissal from his employment. He was aware that he did not have 12 month’s service with his employer. However he sought to overcome this by indicating that he was contemplating commencing civil proceedings against his employer under the Payment of Wages Act. In that regard he sought to rely on section 6(2)(c) of the Unfair Dismissals Act. He submits that this exempted him from the requirement to have 12 months service with his employer to bring a complaint under the Act.

He submits that the online form was deficient and prevented him from filing the complaint with the WRC under the Unfair Dismissals Act. He submits that he did the best he could in the circumstances and clicked the Industrial Relations Act button to enable him submit his complaint. He submits that he expected the complaint to be dealt with under the Unfair Dismissals Act. He submits that to prevent him proceeding on that basis would be unfair to him and penalise him for a systems failure that was not of his making.

The Court has considered this submission with great care.

The Court notes that the Complainant received correspondence from the Workplace Relations Commission dated 13 December 2016 that clearly indicates that the unfair dismissals complaint he submitted would be processed under the Industrial Relations Acts.

At that point the Complainant was aware that the Workplace Relations Commission was treating his complaint as one of unfair dismissal that fell to be dealt with under the Industrial Relations Acts and not under the Unfair Dismissals Act.

At that point he was within time for correcting the alleged misunderstanding he contends the Workplace Relations Commission was labouring under. However he made no contact with the Workplace Relations Commission at that time or before the expiry of the statutory time limit on 12 January 2017.

The Workplace Relations Commission again wrote to the Complainant on 31 January 2017 again referring to the complaint under the Industrial Relations Act.

The Complainant responded to that correspondence some 17 days later on 17 February 2017. These delays brought him outside the statutory time limit for filing a complaint under the Unfair Dismissals Act.

The question the Court must decide is whether the claimant has shown

“that there are reasons which both explain the delay and afford an excuse for the delay”.

It must also consider the explanation for the delay on which he seeks an extension of time. In that regard “the explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.”

In this case the only explanation offered to the Court by the Complainant was that he did not consult with his legal advisor until he received the letter dated 31 January 2017. He submits that when he so consulted his advisor he acted with all reasonable speed to correct the misunderstanding.

The Court does not accept that explanation. The Complainant, by his own account, was very conscious of the difficulty he had when submitting his original complaint in November 2016. He submits that he made every effort to alert the Workplace Relations Commission to the fact that he wished to bring his complaint under the Unfair Dismissals Act. However he failed to take any steps to alert the Workplace Relations Commission that it had misunderstood the statutory basis for his complaint when he received the correspondence dated 13 December 2016 informing him that the Complaint was being processed under the Industrial Relations Acts.

The Court takes the view that such a lack of urgency on his part is not consistent with his claim that he was at all times seeking to bring the Complaint under the Unfair Dismissals Act and to so alert the Workplace Relations Commission.

The Court further finds that the Complainant showed a further lack of urgency between 31 January and 17 February 2017 when he made no contact with the Workplace Relations Commission to correct the record.

In these circumstances the Court finds that the Complainant was entirely responsible for the delay in bringing the proceedings under the correct statute. It finds that he had ample opportunity between 13 December and 12 January to submit a brief correcting note to the Workplace Relations Commission had he chosen to do so. Instead he chose to do nothing. He further delayed for 17 days after 31 January before advising the Workplace Relations Commission that his efforts to bring his complaint under the Unfair Dismissals Act had been frustrated by the systems that he claims had failed him.

Taking all of these delays into consideration the Court finds that the Complainant has not established a “causal link between the circumstances cited and thedelay” as required by the test set out in Cementation Skanska above.

Determination

Accordingly the Court determines that the Complaint was submitted out of time and no reasonable cause has been advanced that would justify an extension of that time limit in this case.

The Court so determines.

As this disposed of the matter before it the Court has given no consideration to the substantive claims or defences made by either party in this dispute.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
20 December 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.