PDD171

FULL RECOMMENDATION

PD/17/1

DETERMINATIONNO.PDD171

ADJ-00002571 CA-00003602-002

SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014

PARTIES :

QFF DISTRIBUTION LIMITED
(REPRESENTED BY MS CLAIRE BRUTON BL INSTRUCTED BY MCGRADY & CO SOLICITORS)

- AND -

KEITH O' REILLY

DIVISION :

Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Mr Hall

SUBJECT:
1. Appeal of Adjudication Officer's Decision No: ADJ-00002571, Complaint/Dispute Reference No. CA-00003602-002.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 10 April 2017. A Labour Court hearing took place on 26 October 2017. The following is the Court's Determination:

DETERMINATION:

Background to the Appeal

This is an appeal brought by Mr Keith O’Reilly (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00002571, dated 28 February 2017) in respect of a complaint of penalisation contrary to the Protected Disclosures Act 2014 (‘the 2014 Act’). The Complainant was employed by QFF Distribution Limited (‘the Respondent’) as a Sales Office Assistant until he resigned his employment on 25 September 2015.

The relevant initiating complaint form was received by the Director General of the Workplace Relations Commission on 1 June 2016. Having regard to section 41(6) of the Workplace Relations Act, the six-month time limit within which the initiating complaint in respect of the alleged penalisation should have been referred to the Director General of the Workplace Relations Commission expired, at the latest, on 24 March 2016. The Complainant, therefore, lodged his complaint out of time.

Application to Extend Time

At first instance, the Complainant made an application to the Adjudication Officer to extend time within which to bring his claim of penalisation. This application was refused and the Adjudication Officer held that the Complainant had failed to demonstrate reasonable cause for his delay in bringing the claim.

The Complainant has renewed his application to extend time as part of his appeal to this Court. The matter, therefore, falls to be considered afresh in the context of ade novohearing.

Section 41(8) of the 2015 Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338,Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“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.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court inMinister for Finance v CPSU & Ors[2007] 18 ELR 36.

The test formulated inCementation Skanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the Complainant would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

Discussion

The Complainant submits that in the period since his resignation he has been suffering from stress and anxiety (for which he was receiving medical attention) as a consequence of the manner in which he had been treated whilst an employee of the Respondent. He further submits that this affords him reasonable cause for delaying in initiating proceedings under the 2015 Act in respect of the alleged penalisation he experienced. The Complainant exhibited a short note from a medical practitioner which made reference to the Complainant having had a consultation with that practitioner. The Respondent submits that the Complainant had succeeded in obtaining alternative employment within two to three weeks of the date of his resignation. The Respondent also submitted that the Complainant filed a complaint against it under the Payment of Wages Act 1991 on 21 October 2015, less than a month after the date of his resignation. On the basis of the foregoing, the Respondent urged the Court not accept the Complainant’s submission that he was prevented from lodging his claim of penalisation because of his alleged ongoing stress and anxiety.

The Court has considered the submissions of both Parties and determines that the Complainant has failed to establish to the Court’s satisfaction that the reason he relies upon provides a justifiable excuse for his delay in commencing proceedings under the 2015 Act, particularly in circumstances where the Complainant was sufficiently well enough to commence proceedings against the Respondent under the 1991 Act and did so.

The decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
3 November 2017.______________________
MNDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.