FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : PATRICK HOARE & SONS LTD (REPRESENTED BY MR STEPHEN O'SULLIVAN B.L. INSTRUCTED BY NIALL T. CAWLEY & CO SOLICITORS ) - AND - LIAM DONNELLY (REPRESENTED BY MR PAUL RYAN, CLARE CITIZENS INFORMATION SERVICE) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer Decision No. R-159292-UD-15/GC.
BACKGROUND:
2. The Employee appealed the decision of the Adjudication Officer to the Labour Court on the 2 June 2016 in accordance with Section 9 (1) of the Unfair Dismissals Acts, 1977 to 2015. Labour Court hearings took place on the 13 October 2016 and the 12 January 2017. The following is the determination of the Court:
DETERMINATION:
The Court has been asked to consider as a preliminary matter the question of the time limits applying in the within case and to determine the contention of the Respondent that the Appellant’s complaint was made outside the time limit of six months provided for at Section 8(2)(a) of the Unfair Dismissals Act, 1977 as amended (the Act). The Appellant contends that the circumstances arising in the matter represent reasonable cause preventing the making of the complaint within that time limit. The time limit at Section 8(2)(a) of the Act can be extended by the Court in accordance with the Act at Section 8(2)(b).
The Act at Section 8(2) as amended 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 section 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,
- (a) within the period of 6 months beginning on the date of the relevant dismissal, or
The material circumstances upon which the Appellant relies can be summarised as follows:
1. The Appellant’s employment terminated on 9thSeptember 2014. The within complaint was made on 27thJuly 2015. The time limit for the making of the within complaint expired on 8thMarch 2015.
2. The Appellant, with the assistance of a Community Information Centre (the Centre), had made a similar complaint under the Industrial Relations Act, 1969 (the Act of 1969) within six months of the termination of his employment. The Centre representative asserted to the Court that the complaint under the Act of 1969 was made at a time when the Centre understood that the Appellant had less than one year’s service with the Respondent.
- 3. The Centre asserted to the Court that it contacted the Workplace Relations Commission on two occasions after the complaint under the Act of 1969 had been made and within six months of the termination of the employment but was advised that the Commission did not regard the Centre’s representative as the legal representative of the Appellant. The Centre stated to the Court that the Centre assumed as a consequence that the Appellant had engaged another representative in the interim.
4. The Appellant states that he contacted the centre in 2015 to say that he had heard nothing about his complaint which had been made under the Act of 1969. The Centre asserted to the Court that it became aware at the point of that conversation that the Appellant was otherwise unrepresented and also that he had in fact 22 years’ service with the Respondent.
5. The Appellant, with the support of the Centre, states that on 26thJuly 2015 he withdrew his complaint under the Industrial Relations Act, 1969 and made the within complaint on 27thJuly 2015.
Discussion
This Court inCEMENTATION SKANSKA (FORMERLY KVAERNER CEMENTATION) LIMITED AND MICHAEL MCGRATH [DWT0342]stated as follows:
- 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 claimwithin 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 or she 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.
It is therefore for the Appellant to both explain the delay and demonstrate that the delay arose for reasonable cause.
The fundamental basis for the contention by the Appellant that the making of the within complaint within the time limit was prevented due to reasonable cause is that the Appellant, with the support of the Centre, did not believe initially that he possessed the requisite service for the making of a complaint under the Act. A complaint was instead made under the Act of 1969. The Court cannot accept that the Appellant, at the time of his dismissal, was unaware that he had been employed by the Respondent for over twenty years rather than for a period of less than one year. The error, if such there was, must therefore have arisen in the course of interaction between the Appellant and the Centre.
In any event, the Appellant made a valid complaint to the Workplace Relations Commission under the Act of 1969. That complaint was knowingly withdrawn by the Appellant, with the support of the Centre, in July 2015.
The Court is asked to accept that the decision to substitute a valid complaint made under the Act of 1969 with a complaint under the Act at a point when that complaint was outside of the time limit, and in the circumstances outlined to the Court as set out above, represents reasonable cause which prevented the making of the within complaint in time.
The Court does not accept this contention. The Appellant at all times was aware of the length of his service with the Respondent and was party to the discussion and decision to make a complaint under the Act of 1969. A lack of awareness as contended for by the Appellant, that he had the capacity, in consequence of the length of his service, to make a valid complaint under the Act cannot be accepted by the Court as reasonable cause preventing the making of the within complaint in time.
The Court must follow the dictum of Laffoy J inMinister for Finance v CPSUand Ors[2007] 18 ELR 36 to the effect that ignorance of one’s legal rights cannot in law constitute reasonable cause for not observing a statutory time limit.
Based on the information before the Court, the Court is not satisfied that the Complainant has shown reasonable cause in accordance with Section 8(2)(b) of the Act for allowing an extension of time beyond the period stipulated in Section 8(2)(a).
Determination
The appeal is disallowed and the decision of the Adjudication Officer as regards extension of time is set aside.
Signed on behalf of the Labour Court
Kevin Foley
LS______________________
25 January 2017Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.