ADJ-00008497

Complainant

Respondent

Anonymised Parties

A Maps Data Analyst

A Technical Company

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-00011155-001

05/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998.Withdrawn on 19 September , 2017

CA-00011155-002

05/05/2017

The Complainant submitted two complaints before the WRC on 5 May 2017. On 19 September 2017, the Complainant withdrew her claim under the Employment Equality Act 1998, leaving the claim for Unfair Dismissal live. On the day before the hearing, scheduled for 19 September, 2017, The Complainants Solicitor submitted an application for SKYPE facilities to facilitate his client’s appearance at hearing.

The Complainant is an American National who worked for the Respondent company from 23 March 2015 to 3 June 2016 .She worked a 38 hour week and received 2833.33 euro in salary on a monthly basis.

The Complainant submitted that her position was terminated with 4 weeks pay in lieu of notice on May 6 , 2016. She submitted that she had been unfairly dismissed and had no option but to leave Ireland as her Work Permit was no longer valid.

The Complainant submitted that she then experienced a period of financial instability causing her to relocate to Melbourne on 24 June 2016. She submitted that she was employed there by 4 July 2016.

On 18 September, 2017, the Complainants Solicitor submitted a Preliminary application to allow the complainant to present at hearing by means of video conferencing/SKYPE citing the complainant’s current resident status of New Zealand and her inability to fund travel to the hearing.

The Complainant submitted a written outline on how the dismissal had affected her socially, financially and emotionally. She sought the remedy of compensation.

On May 8, 2017, the Complainants Solicitor submitted an application for an extension on the statutory time limit for the claim by means of reasonable cause. He stated that the Complainant was prevented from submitting her complaint earlier due to the difficulties which followed her dismissal.

The Respondent denied the claim for Unfair Dismissal and made a Preliminary argument on reasonable cause.

In response to the application for SKYPE facilities, the Respondent objected to the application on the basis that the complainant would not be physically present for cross examination.

Preliminary Argument on Reasonable Cause :

The Respondent made extensive legal arguments on the request submitted by the Complainant for reasonable cause and extension of the statutory time limits.

In referring to the Labour Court Authority of Cementation Skanska DWT 0338,the respondent pointed to the central test of whether “ there are reasons which both explain the delay and afford an excuse for the delay “

The Respondent contended that the complainant had been aware that her position was at risk prior to her termination due to the changes in the markets .The Complainant was afforded an opportunity to take legal advice and referred to an email thread in that regard .

The Respondent submitted that a reason for the delay or an excuse for that delay had not been properly advanced by the complainant .The Respondent contended that they had been prejudiced by reason of the delay.

There was further reliance on case law :

Tyco Healthcare (Ire) ltd V A Worker EET025/2002

Joezefina Kolarska V Ikea Irl ltd UD 2362/2011

Savage V Sainsbury ltd [1980] IRLR 109

The Respondent submitted that the complainants submission of 5 May 2017 was the last effective date to seek jurisdictional cover and was very wide of the date of termination of 6 May 2016 .The Respondent sought that the claim be dismissed both on grounds of no appearance by the complainant and on jurisdictional time limits .

Preliminary Application for SKYPE facilities :

I have given consideration to both parties’ submissions on this matter. The Complainants Solicitor sought the facilities to allow for the complainant to be heard from her current geographical base of New Zealand. The Respondent was completely opposed to this.

Section 41 (4)-(5) of the Workplace Relations Act , 2015 provides that :

The Director General shall refer for adjudication by an adjudication officer a complaint or dispute referred to him or her under paragraph (b) of subsection (3) of Section 42 by the Labour Court.

(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(I) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision,

I understand the arguments advanced by the Complainants Solicitor in terms of Video Conferencing being a feature permitted at the Criminal courts. However, there is no such provision under the current Workplace Relations Act 2015.

I must find that the physical presence of the complainant at hearing is a pre-requisite to me being able to comply with my responsibilities to the case.

Section 41(6) provides that :

(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.

And

(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.

I have heard the Respondent submissions on reasonable cause and have found that the arguments made, while valid and pertinent are now overtaken by the lack of the Complainants failure to physically present at hearing .And while, I have sympathy with the circumstances of being located away from the country, I note that the claim was lodged just short of 4 months ago.That suggested to me that an intention to present to articulate the claim should have been in contemplation ,at least.

I asked the Complainants Solicitor whether it was likely that the complainant might be available for some date in the near future?. He was unable to submit an undertaking in that regard.

Based on the reasons as outlined above, I find the case falls for want of prosecution. 

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 found that the claim for Unfair Dismissal falls for want of prosecution.