ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003996
| Complainant | Respondent |
Anonymised Parties | A Steel fixer | A Construction Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00005694-001 | 01/07/2016 |
Date of Adjudication Hearing: 28/04/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Location of Hearing: Room 4.01 Lansdowne House
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was employed as a Steel Fixer by the Respondent, a construction company, from 1st July 2014 to 4th August 2015, working on a site abroad. He was paid €43,000 per annum. He has claimed that he was unfairly dismissed because he sought disciplinary action be taken against another employee. The favoured redress of both parties was compensation.
Preliminary Point - Time limit
The termination of employment occurred on 4th August 2015. The claim for unfair dismissal was presented to the Commission on 1st July 2016. Sec 8 of this Act sets out the time limit allowed for making such a claim, which is six months with a possibility of an extension of a further six months in certain circumstances.
Complainant
The Complainant stated that he was seeking an extension as he had become very unwell after he was dismissed and suffered from depression. He was psychologically incapable, feeling down all the time, and suffered from panic attacks. His partner was pregnant at this time and she suffers from diabetes. For all the reasons he had not submitted a complaint to the WRC. In July 2017 he was advised by family members that he should seek justice and process a formal complaint. He then sought legal advice.
The complainant submitted an undated letter from a doctor stating he suffered from "disease".
The Complainant also referred to precedents which have lowered the threshold of what is required of a Complainant to be given an extension to the six month time limit. According to the Complainant, "it is no longer necessary to be in jail or hospital."
Respondent
The Respondent submitted that the claim was five months beyond the time required by legislation. The respondent submitted that there was no clear evidence of alleged serious illness which would hinder the Complainant from submitting his claim within the statutory time allowed. The medical documentation submitted on his behalf was less than convincing. The Respondent submitted that there is no justifiable or substantive reason to extend the date allowable for submission of claim and ask that the claim be rejected.
Decision on the Preliminary Point – Time Limit
Sec 8 of the Unfair Dismissals Acts as amended by the National Minimum Wage (Low Pay Commission) Act 2015 states. “…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”.
Therefore the benchmark is “reasonable” cause not exceptional cause.
The Labour Court in the Cementation Skanska V Carroll DWT00338 (WTC0333) stated, “in considering if reasonable cause exists it is for the complainant to show that there are reasons which both explains the delay and afford an excuse for the delay…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 the circumstances known to the complainant at the material time”
Towards the end of the hearing the Complainant stated that he was currently working as a bus driver and had commenced a driving course in preparation for this job in November 2015.
I have considered her reasons given and I do not accept that they constitute reasonable cause as they did not in my view afford an excuse for the delay or an explanation for the delay. There was no real evidence to support the Complainant's contention that he was unable to process a complaint for 11 months due to illness. The fact that he commenced a professional driving course in November 2015 is telling; if he was able to undertake such a course then he should have been able submit a complaint to the WRC.
I have decided not to grant the extension to the time limit.
Therefore I find that the claim was presented to the Commission 1st July 2016 and so it is clearly outside the time limit allowed in Sec 8 of this Act.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I have decided that I do not have jurisdiction to hear this complaint.
Dated: 10th July 2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Time-limit, six months, preliminary point |