Complainant

Respondent

Anonymised Parties

A Shop Worker

A Retail Chain

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00006142-001

26/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00006142-002

26/07/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00006143-001

26/07/2016

Application for an extension of time.

The Complainant left her employment on the 30^th November 2015. She was clearly unwell at that time and under Psychiatric care. She was not fully fit until mid-Summer 2016 when she lodged her claim – dated the 26^th July 2016. The first six months expired on the 29^th May 2016.

The application for an extension of time is based on this ground.

If the extension is allowed the Complainant makes the following points

The Complainant was not in a fit state of mind to engage with her employer during the meetings that took place in September and November 2015. The Respondent employer failed to take due care of her medical condition and made no efforts to establish the proper medical facts of her case. The ending of her employment was accordingly completely procedurally unfair. No consideration was given to finding “reasonable accommodation” for her condition and all natural justice was denied.

The Respondent pays an annual Christmas bonus. The Complainant was denied this for 2015 despite having been in work for the major part of the year.

The Complainant was denied her statutory minimum notice on the ending of her employment.

2:1     Application for an extension of time.

The Complainant’s employment ended on the 30^th November 2015. She had until the 29^th May 2016 to lodge a claim with the WRC. The claim was not lodged until the 26^th July 2016. There are no exceptional circumstances to justify granting this extension.

At the time of the ending of her employment there was nothing to indicate to the Respondent that the Complainant was seriously unwell. The Complainant was quite private about her medical situation. There was nothing in the Complainant’s demeanour at the meetings held that she was incapable of making rational decisions.

In oral evidence it was accepted that the Complainant was under medical care but not to such an extent as to render her incapable of lodging even a “holding complaint”. She was being advised by a variety of Social Assistance bodies and could not claim that she did not have access to sources of information as to her rights.

There is no “reasonable cause” to warrant granting an extension of time.

Notwithstanding the arguments as regards the Time issue the Complainant was afforded every opportunity to explain her case to local management. Meetings were held with her on the 21^st September 2015, the 10^th November 2015, the 30^th November 2015 and was a finally offered an opportunity to make a further case in writing by the 7^th December 2015. This was not availed of. The Complainant did not avail of any Representation at the meetings.

At the meeting of the 30^th November 2015 the Complainant had brought in her Uniform and Locker keys to return to the Manager. She had stated that she felt that she would never be returning to work in Respondent Town. Effectively the Manager, reasonably, took this as a resignation.

In oral evidence from the Manager (November meetings) and the Assistant Manager who had held the 21^st September meeting they stated that there was nothing unusual in the demeanour of the Complainant that would lead them to a belief that she was incapable of proper decision making.

The rules of the Christmas bonus scheme are clear and the Complainant was no longer an employee on the effective payment date.

All proper payments were made on the Complainant’s departure and no entitlement to extra notice applies. The Complainant effectively resigned.

3:1     Preliminary Issue. Time Limits

The claim was lodged on the 26^th July 2016 – almost eight months after the ending of the employment.

Section 41(8) of the Workplace relations Act ,2015 states as follows

(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 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.

The key question therefore is whether or not there was “ reasonable cause” for the almost eight month delay.

The key issue advanced by the Complainant’s Representative was the state of psychiatric health of the Complainant during the first six month period. A Medical report form the HSE South dated the 24^th November 2015 was submitted in evidence as was a list of medications being taken.

The Adjudication officer is not qualified to comment on the specific medical details of the Medical reports or the mediations being prescribed. However the Report of the 24^th November 2015 did not, to a layman’s reading, indicate any absolutely chronic issues.

In addition, the basic facts given in evidence were that the medical history of the Complainant well predated the incidents of September 2015. She had been working for the Respondent while under medical care even if the Respondent may have been unaware of this.

The Complainant had a psychiatric episode due to a personal relationship break up in September 2015. Nonetheless she was capable of engaging with her employer at various meetings and in no way gave the impression of being incapable. Oral evidence from the Assistant Manager and Manager was quite clear on this point –there was nothing in the demeanour of the Complainant to alert them to a serious problem. The meeting of the 30^th November when the Complaint retuned her Uniform and Locker Keys was normal from a behavioural point of view.

Post the ending of the employment the Complainant engaged with variety of Social Services to secure housing.

She was clearly not without extensive advice throughout the six month period.

The lodging of the claim appeared to come from a meeting with her Representative in July 2016.

The Complainant gave oral evidence regarding her meetings with the Respondent which I found perfectly normal. She did not appear to me to have been incapable of carrying out normal activities during the six months up to the end of the first six months deadline.

Accordingly and in summary, having considered all the evidence and listened to the Complainant’s oral evidence I could not find “reasonable cause” to warrant extending the time limit.

I according rule the claim out of time.

The same arguments apply to the other two elements of the overall claim, the Payment of Wages Act, 1991 complaint and the Minimum Notice Minimum Notice & Terms of Employment Act, 1973 complaint.

Act

Complaint Reference No.

Summary Decision – ref to Section 3 above for detailed arguments.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00006142-001

Claim fails to establish reasonable cause for the granting of a time extension. Accordingly claim is out of time.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00006142-002

Claim fails to establish reasonable cause for the granting of a time extension. Accordingly claim is out of time.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00006143-001

Claim fails to establish reasonable cause for the granting of a time extension. Accordingly claim is out of time.