ADJ-00004806

Complainant

Respondent

Anonymised Parties

A Senior Manager

A Financial Services Company

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-00006773-001

02/09/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00006773-002

02/09/2016

The complaint under the Employment Equality Acts was withdrawn at the hearing.

A preliminary issue arose as to whether the complainant had been submitted within the time limits prescribed.

The date of the alleged constructive dismissal was March 2^nd. The complaint was registered as having been received by the WRC on September 2^nd.

The time period of six months therefore expired on September 1^st and the question arises as to whether there is ‘reasonable cause’ to extend the time limits to enable a decision on the complaint.

The complainant says that the complaint does not fall outside the time limits.

The resignation had to be recorded with the Central Bank as the complainant held a ‘controlled function’. This did not happen until March 9^th, or later. Therefore the resignation was not effective until that date.

In any event the complaint was only one day late and the time can be extended for ‘reasonable cause’. He had been initially by his solicitor that the time to lodge the complaint expired on September 1^st, and later September 2^nd.

Relying on this latter advice he did so on the latter date.

The complainant opened case law which indicated that the Employment Appeals Tribunal has differed as to whether an error on the part of a solicitor can amount to (in the particular cases) exceptional circumstances.

He submits that this represents ‘reasonable cause’.

He also submitted that the respondent was not prejudiced in any way by the later referral of the complaint.

The respondent said that the notification to the Central Bank was not relevant and the relevant date was that on which the complainant resigned.

The respondent also noted that the error in this case was not made by a solicitor but by the complainant.

It relied on the decision of the Labour Court in the case of Cementation Skanska in which three criteria were set out for assessing whether a delay constitutes ‘reasonable cause’.

It noted that the Labour Court found in that case that there must be an arguable case, that the complainant must show that there are reasons which both explain the delay and afford an excuse for the delay.

The conditions are not met in this case.

I have very carefully considered the arguments made on the preliminary point. 

(In keeping with WRC practise, I heard the substantive case fully on the basis that, should I find in favour of the complainant on the preliminary point, I would then issue a decision on the substantive complaint.) 

The standard required to permit an Adjudicator to extend the time limit (to a maximum of twelve months) is that of ‘reasonable cause’. 

This is seen as a lower bar than that which formerly existed in some employment statutes of ‘exceptional circumstances’, although defining the difference between the two standards might be difficult. In any event, the standard to be met in this case is that of ‘reasonable cause’. 

The procedures of the WRC are intended to be accessible and to facilitate the relatively speedy, cost efficient resolution of workplace disputes. There is a degree of informality about hearings, deliberately so that parties who may not be legally represented, for example, may nonetheless have their complaint heard and adjudicated with relative ease. 

In some ways, to a lay person, a delay of one day may seem inconsequential, yet it is a time limit defined in statute. The respondent made the case that the fact that the complaint was lodged one day late in itself told against the complainant. 

Certainly a person who leaves the lodgement of a complaint to the last day (even when it is, in fact, the last day) is taking something of a gamble with good fortune. 

Failure to understand or be aware of the requirements of the legislation have never provided a basis for extension of time limits. 

The Labour Court has held in Rezmerita Ltd v Uciechowska (DWT 1019)that ‘ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint cannot provide a justifiable excuse for a failure to bring a claim in time’. 

Section 41(8) of the Act provides 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 Labour Court stated in Cementation Skanska v Carroll WTC0338 that; 

‘The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case. 

However, in a passage that is widely relied on for its clarity and authority on the key point in this case the Labour Court went on to say’

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.

It will be seen from this that there is a three step test. 

There must be reasons which explain AND afford an excuse for the delay. 

The explanation must be reasonable, and the failure to submit due to that reasonable cause. 

Finally the Court indicates that even where there is ‘reasonable cause’ ‘the Court must still consider if it is appropriate to grant the extension. 

While the complainant has sought to attribute some liability to his solicitor in relation to incorrect information as to what would be the last day for submitting the complaint this only provides an explanation as to why the complaint was not submitted on September 1^st . 

It overlooks the fact that there were six months before this date on which the complaint could have been submitted. 

No explanation of any nature, reasonable or unreasonable, was offered as to why he failed to do so in that period and the attempt to fix the solicitors with any liability for the failure to submit the complaint within the time limits has no merit whatsoever. 

As will be seen above, section 41(8) of the Act refers to a failure to present the complaint ‘within that period’ i.e. of six months, and I have to form a view as to whether there is reasonable cause in that wider timeframe, and not just as between September 1^st and 2^nd . 

The solicitors’ liability for any of this only arises on the basis that the complainant intended to lodge the complaint on the last day possible, which of course is his choice to do. 

It seems very unlikely that he was advised to leave it to the last moment by his solicitors and therefore this offers no ‘cause’ as to why the complaint was not submitted on any of the other, approximately one hundred and eighty days when it might have been. 

At that stage the complainant was acting on his own behalf and his solicitors were not involved in the submission of the complaint. 

In other words, and having regard to the Labour Court test, even the alleged error in respect of the ‘last day’ does not explain why the complaint was not submitted ‘within’ the six month period. It only explains why it was not submitted on September 1^st because the complainant misunderstood what the last day for submission was. 

No evidence was offered as to why the complainant wished to leave the submission to the last date. It was stated in evidence that his solicitors had mentioned both September 1^st and 2^nd as being the last date. 

But clearly, there is a greater risk for a complainant who intends to leave the submission of his complaint to that very last day and if he does, he ought to know exactly what that last day is. 

Or if there is uncertainty in his mind he should have lodged the complaint earlier! 

The complainant’s submission does not, as required by the Labour Court, come close to ‘providing reasons which both explain the delay and afford an excuse for the delay’ especially in the context of what the Act actually says. 

I find therefore that the complainant has not met the test set out by the Labour Court and that there is no justification to extend the time limits, harsh as this may appear given the fact that it was one day late. 

However, this is not a matter for the operation of some generalised discretion on the part of the Adjudicator who must take account of the fact that these are time limits set down by the Oireachtas in statute and also of the clarity of the authority of the Labour Court, and its tests, as outlined above. 

On the facts of this case, even one day makes a difference. I therefore find that the complaint is not within jurisdiction.

I find that the complaint was not submitted within the statutory time limits and that no good reasons which explain or excuse the delay have been submitted for the failure to do so. Accordingly I dismiss complaint CA-00006773-001.

Complaint CA-00006773-002 was withdrawn at the hearing.

Constructive dismissal, time limits, ‘reasonable cause’ for extension.