ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003261

Complaint for Resolution:

Venue: Ardboyne Hotel, Navan, Co. Meath

Date of Adjudication Hearing: 15/12/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 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 team leader with the Respondent from the 3^rd of November 2008 to the 7^th of August, 2015. He was paid at the rate of approximately €300 per week. He alleges that he was unfairly dismissed without due process or fair procedures contrary to the terms of the Unfair Dismissals Act, 1977. He filed a complaint with the Workplace Relations Commission on the 15^th of May, 2016.

Preliminary Issue - Time Limits

The Respondent outlined the following submission in relation to the preliminary issue of time limits.

The Complainant lodged his complaint on the 15^th of May, 2016. He was dismissed from his employment on the 7^th of August 2015. Therefore this complaint is outside the 6 months time limit as prescribed under Section 8(2) of the Unfair Dismissals Act, 1977.

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars) if any

a) Within the period of 6 months beginning of 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. “

The Workplace Relations Act, 2015 is similar as Section 41.

“S 41.(6) subject to Subsection (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…

(8) An adjudication officer may entertain a complaint or a 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 in that period was due to reasonable cause.”

The Complainant’s reasons seeking an extension of the time limit does not stand up. Ignorance of the law is no excuse or defence. He has alleged that he did not speak good English. Such an excuse is very unusual where he was required to converse in English with customers and work colleagues. The Complainant could have consulted Citizens’ Advice, a Trade Union, the Workplace Relations Commission website and FLAC. He failed to consult any of those bodies in relation to his complaint.

The legislation refers to “reasonable cause” as permitting an extension of the statutory time limits. The tests applied by the Labour Court for extensions of time under the Organisation of Working Time Act, 1997 have been well established. In Cementation Skanska v Carroll DWT 0338 the Court articulated the test by stating

“It is the Court’s view in considering of reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’s failure to present the claim within the 6 month time limit must have been due to the reasonable cause relied upon. Hence, there must be a casual link between the circumstances cited and the delay and the Complainant 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 slight explanation whereas a long delay might 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 sufficient prejudice by the delay and should also consider if the Complainant has a good arguable case.”

Complainant’s Submission on Preliminary Issue

The Complainant’s representative outlined the following submission.

The Complainant is Lithuanian and his English skills are very limited and he needs a friend to translate for him, e.g. in furnishing his representative with instructions for his case.

The Complainant was advised by his 3 former co-workers that he should take a case against the Respondent given the way that he had been treated. The Complainant did not realise that he could take a case until he was persuaded by his former colleagues to do so and hence he contacted his legal advisor.

After the Complainant was dismissed, he felt very bad, low and very depressed. He stated that he did not receive any social welfare until November, 2015. Up until the time that he received social welfare payments, the Complainant had no money and could not go to a solicitor to ascertain whether he had a case for unfair dismissal. The Complainant has very little support in Ireland. And it was only on the advice of his former co-workers that compelled him to contact his solicitor.

It is accepted that ignorance of the law is no excuse but in circumstances where he could barely speak English, had very little support, was suffering from depression, would appear to have a good case against his former employer, it would be inequitable not to allow him to proceed with this case.

Decision on Preliminary Issue of Time Limits

I advised the parties that I would reserve my decision on the preliminary matter and would hear the substantive matter. I heard the submissions from both parties on the substantive matter. I also received a supplemental submission from the Complainant’s representative.

Based on the evidence presented by the parties on the preliminary issue of the time limits, I find that this complaint is out of time. Therefore I have no jurisdiction to adjudicate on this complaint.

The Complainant worked as a team member at the Respondent’s take away restaurant since the 3^rd of November, 2008. English is the working language of the business as staff has to communicate with members of the public all the time as did the Complainant. He was able to communicate in English with both customers and his colleagues. I note the staff are recruited on the basis that they speak adequate English and this is a requirement and is provided for in the staff handbook which he signed for. At page 5 of the staff handbook, it states;

“English is the business language of the organisation and therefore all employees must speak the business language to each other and to clients and to customers during business hours and when on duty. Employees are free to speak in other languages on their rest breaks. Employees who do not follow this company rule may be subject to disciplinary action up to and including dismissal.”

The Complainant could have sought advice on how to proceed with his complaint from Citizens’ Advice, a Trade Union or from the Workplace Relations Website. These services are free and would have cost the Complainant nothing.

The Complainant alleges that he was suffering from depression and he gave this excuse as a reason for not submitting his complaint in time. No medical certification was submitted to confirm this. His ignorance of the law is not an excuse to allow an extension of the time limits.

Dated:   23/03/2017