RPD175

Preliminary Issue – Time Limit

In this case it was agreed with the parties that the Court would consider the question of whether or not the claim under the Acts was lodged within the time limit prescribed by Section 24 of the Acts as a preliminary matter as this is a question of fact which should be determined separately from other issues arising in the case.

Background

The Respondent is a provider of Catering Services. The Complainant had been employed by the Respondent on a casual basis as a Floor Manager primarily based at Croke Park. She contended that she had been transferred in a transfer of undertakings from Marino Catering to the Respondent in March 2005. This point is disputed by the Respondent, however, as it is not germane to the within proceedings the Court makes no finding in that regard. While the question of how the Complainant’s employment ceased is in dispute, it is not disputed that her employment came to an end with the Respondent on 19January 2014.

The Respondent held the catering contract with Croke Park until 31December 2013. It was unsuccessful in its renewal of the contract for 2014 and Aramark Catering took over the contract, with the result that 20 full time employees who were habitually based at Croke Park were transferred from the Respondent to Aramark Catering in accordance with theEuropean Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003(the Regulations). The Complainant commenced working with Aramark Catering in January 2014 on a similar basis to her previous contract with the Respondent. The Complainant says she only became aware that she had not been transferred to Aramark Catering in December 2014 and consequently set about seeking a redundancy payment from the Respondent. Having sought assistance from the Workplace Relations Commission, the Complainant sent a RP77 to the Respondent on 23 March 2015. The Respondent replied by letter dated 7 April 2015 stating that she had resigned on 19 January 2014.

The Complainant referred her claim to the Workplace Relations Commission on 26 November 2015, which was outside the time limit for submitting a claim for a redundancy payment prescribed by Section 24(1) of the Acts. The Adjudication Officer considered the Complainant’s application under Section 24 (2A) for an extension of time to have her complaint under the Acts heard.

Summary of the Complainant’s Case

Ms Sharon Dillion Lyons, B. L., instructed by P.G. Cranny & Company Solicitors on behalf of the Complainant submitted that at no point did the Complainant understand that her position was made redundant; on the contrary, she understood that her service had been transferred over to Aramark Catering.

Ms Dillion Lyons told the Court that on 13 December 2013, a text message was sent to the Complainant by the Respondent’s Public Catering Manager informing her that the Respondent was unsuccessful in renewal of the Croke Park, asking her to return her uniform and that the Respondent would be in touch in mid-January regarding the 2014 season. Then on 9 January 2014, the Public Catering Manager again texted the Complainant to inform her of an introductory meeting of all staff interested in working in Croke Park, this meeting was to take place on 19 January 2014 and sought details of PPS number and bank account details which were required for Aramark Catering. The Complainant responded asking how long the meeting would take and the reply was“Max 2 hrs. Fitzers gone. Now Aramark. Hope your coming back this season.”

Ms Dillion Lyons said that prior to attending the general meeting on 19 January 2014, she along with other Floor Managers, attended a manager’s meeting that same day where the Floor Managers signed contracts of employment with Aramark Catering.

At the general meeting which the Complainant stated was an induction meeting with Aramark Catering to discuss such matters as health and safety issues etc. the Complainant along with all others attending were asked to sign a sheet of paper, with their names on it and which was headed“I Authorise that Fitzers Catering process and issue my P45 to[named Aramark Catering, Public Catering Manager]care of Aramark.”The Complainant told the Court thatshe signed the paper as she was informed that a failure to sign could result in a delay in processing wages.

Ms Dillion Lyons said that the Complainant was unaware that she may have had a cause of action with the Respondent until April 2015 when the Respondent outlined it position to her that in its view she had resigned on 19 January 2015. On foot of that information, the Complainant sought legal advice in April 2015. Her solicitors wrote to the Respondent on 4 September 2015 to verify that a transfer of undertakings had occurred. As no reply was received a complaint was lodged with the Workplace Relations Commission on 26 November 2015, (owing to a clerical error the complaint had been inadvertently made against the wrong respondent and lodged with the Workplace Relations Commission on 19 October 2015).

Ms Dillion Lyons submitted that by the actions of the Respondent the Complainant was frustrated from making her complaint in time. She said in considering the within application, consideration must be given to the fact that the Complainant was not aware whether a complaint arose in respect of a breach of her rights under the Regulations or under the Acts.

Summary of the Respondent’s Position

Ms Emma Cassidy, B. L., instructed by Sheehan & Company Solicitors on behalf of the Respondent denied the Complainant’s contention that fault lay with the Respondent for her failure to lodge her complaint in time.

Ms Cassidy stated that the Respondent informed the Complainant by text at the end of 2013 that it had lost the contract at Croke Park but that there was other work available at other venues managed by it or she could contact Aramark Catering directly if she wished to work at Croke Park, in which case she would no longer be working for the Respondent. Therefore, the Respondent contended that the Complainant was fully aware that she had the option to remain with the Respondent and work at alternative venues or resign and take up engagement with Aramark Catering and continue to work at Croke Park. It contended that signing of the sheet at the meeting with Aramark Catering on 19 January 2015 acted as a formal resignation from the Respondent and indicated her permission to the Respondent to issue a P45 to Aramark Catering.

Ms Cassidy contended that there was no reason to justify the failure to lodge the complaint within the 52 weeks prescribed by Section 24(1) of the Acts. She said that the Respondent sent the Complainant’s P45 to the Complainant’s home address in January 2014; therefore the Complainant was in possession of all the facts pertaining to her engagement at Croke Park as of January 2014. She submitted that the Complainant had made a fully informed decision and had resigned from her employment with the Respondent on 19 January 2014 and became aware of the possibility of an issue regarding her employment sometime around January 2015. In any event the Respondent’s position was made very clear from 7 April 2015 when it formally informed her legal representative that as far as it was concerned the Complainant had resigned on 19 January 2015, yet the complaint was only lodged over seven months later and over ten months since the Complainant elected to take a claim under the Acts. Ms Cassidy submitted that no explanation had been proffered for these delays, during which time the Complainant had the benefit of legal advice.

Ms Cassidy stated that the objective standard to be applied when determining whether reasonable cause has been shown clearly places a limitation on issueswhich can be taken into account.In support of her position, she citedSeamus (James) O'DwyervSword Risk Services Limited[2014] 25 E.L.R. 123, which in following Costello J's decision inO'DonnellvDun Laoghaire Corporation[1991] I.L.R.M. 301, confirmed that:

• " ... 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 judge pointed out that
  the reason relied upon must excuse the delay on an objective
  standard".

Section 24 (2A) of the Acts provides, in effect, that where reasonable cause is shown for a delay in presenting a claim under the Acts the 52 week time limit at section 24(1) may be extended to a period not exceeding 104 weeks beginning on the date of dismissal or the date of termination of employment.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 WTC0338 (October 28, 2003)CementationSkanska (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 seminal decision on this point is that of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here the Court was concerned with applying a provision of the Rules of the Superior Courts which allows for an extension of time for bringing judicial review proceedings where there is good reason for so doing. Here Costello J. (as he then was) stated as follows: -

• 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 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 O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

The Court has consistently held that 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 complainant has a good arguable case.

It is for the Complainant to establish that there is reasonable cause for the delay. The Complainant contended that the delay was caused by her mistaken belief that her employment had transferred to Aramark Catering in line with the provisions of the Regulations. She said that the first occasion on which she had any reason to suspect that she might not have transferred over was when a manager from Aramark Catering made reference to one of her colleagues (also a Floor Manager) receiving her P45 in January 2014. In January 2015 she contacted a former employee of the Respondent in order to air her concerns and clarify matters. It was after that that she sought advice and in March 2015 she sent a RP77 to the Respondent. The Complainant’s position was that she did not realise at that time that she had been deemed by the Respondent to have terminated her own employment on 19 January 2014.

The Court is of the view that this is not an unreasonable conclusion to reach in all the circumstances of this case. The Complainant was informed in December 2013 that the Respondent’s contract with Croke Park had been lost and that she must return her uniform. Yet the Public Catering Manager for the Respondent made it clear that she would be in touch mid-January regarding work for the next season. That same Manager was on 19^thJanuary 2014 now the person responsible for allocating work on behalf of Aramark Catering. The Complainant and all employees were invited to attend a meeting on 19 January 2014 if they were interested in working in Croke Park for the 2014 season. In a text to the Complainant on 9 January 2014, the Public Catering Manager told her“Fitzers gone. Now Aramark. Hope your [sic] coming back this season.”and sought herPPS and bank details as they were required by Aramark Catering. At the meeting she was asked to sign a document authorising the Respondent to issue her P45 to Aramark Catering. The Complainant told the Court that she believed that she had transferred to Aramark Catering in the same manner as other employees who had transferred pursuant to the Regulations. On the basis of the text message which stated that“Fitzers gone, now Aramark”it is not surprising that the Complainant believed that she was likewise transferred. The Court accepts this as a reasonable proposition especially where she was invited along with all other employees to attend a meeting with Aramark to talk about their work standards etc. In reaching this conclusion, the Court is also influenced by the absence of any meaningful communication from the Respondent to the contrary.

While the Complainant said that she was given a choice to work either for the Respondent or for Aramark Catering she did not realise that by choosing the latter she was, in the Respondent’s view, tendering her resignation. The Court is satisfied that this was not made clear to her. There is no dispute that there was a transfer of undertakings however, the Respondent was of the view that as the Complainant and other Floor Managers were employed on a casual basis as the need arose, they were not covered by the Regulations and accordingly no prior notification was given to her, in accordance with Regulation 8 of the Regulations. In all the circumstances of this case, the Court is satisfied that reasonable cause has been shown for the delay in not submitting her complaint within the 52 weeks as proscribed in Section 24(1) of the Acts.

Section 24(2A)

It is well settled that an applicant for an extension of time must both explain the delay and provide a justifiable excuse for the delay. Yet no reasonable explanation has been offered to excuse the delay once she became aware of the difficulties outlined above as early as December 2014. Having considered the submissions advanced in the course of the appeal, and in circumstances in which she presented a RP77 to the Respondent on 23^rdMarch 2015 yet did not follow that up with a claim to the Workplace Relations Commission until 26^thNovember 2015, the Court cannot accept that the Complainant was impaired in presenting her claim under the Acts in a timely fashion. For these reasons the Court cannot identify any justifiable basis upon which an extension of time could be granted in this case.

Outcome

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
28th February 2017______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.