Complainant

Respondent

Anonymised Parties

A Brand Manager

A Restaurant Chain

Representatives

Mr Barry Crushell, Tully Rinckley Solicitors

Darragh Whelan, Ibec

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-00027169-001

20/03/2019

The Complainant was employed as a Brand Manager by the Respondent 3rd October 2016 until 21st July 2018.

The Complainant was paid a salary of €55,000 per annum.

This complaint was received by the Workplace Relations Commission on 20th March 2019.

Preliminary Argument – Respondent.

The claim was lodged with the WRC on 29th March 2019 therefore the cognisable period for this claim is from the 30th September 2018 to 29th March 2019. The Complainant was dismissed on 21st July 2018 meaning that the claim has not been presented within the requisite timeframe. It is the Respondent’s position that the Adjudication Officer does not have the jurisdiction to hear the claim.

The provisions of Section 41 (6) of the Workplace Relations Act 2015 are clear and unambiguous as to the requirement for a claimant to present a claim within 6 months beginning at the date of the contravention to which the Complaint relates.

An extension may be granted by an Adjudication Officer up to a maximum of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay. This is set out clearly in the Workplace Relations Act, 2015, at Section 41(8).

It is the Respondent’s position that no grounds exist which could be considered “reasonable cause” with regards the Complainant’s failure to lodge her claim within the prescribed period.

The WRC wrote to the Complainant in March 2019 to inform her that it appeared the claim did not fall within the statutory timelines but allowed the Complainant to put forward an argument demonstrating reasonable cause to extend said time limits. The Complainant responded by way of a written submission dated 2nd April 2019 stating that she did not lodge her claim within the 6 months as it would have been premature as the appeal was ongoing.

The Adjudication Officer’s attention is drawn to the Labour Court’s decision in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, DWT 0338:

The Labour Court provided its view of the standard that should be applied in applications for time extensions under the ground of “reasonable cause”

“It is noted that the standard required by this subsection is that of ‘reasonable cause’. This may be contrasted with the much higher standard of ‘exceptional circumstances preventing the making of the claim’ which is provided for in other employment related statutes. 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.

It is the Courts 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 complainant 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 is submitted by the Respondent that the Complainant has failed t put forward any reasonable cause which might have caused a delay in lodging proceedings.

The Respondent respectfully asks the Adjudicator to find that the lodgement of proceedings was manifestly out of time and that no reasonable cause exists that prevented her from lodging her claim within the prescribed time period.

On 2nd April 2019 the Complainant wrote to the WRC stating the following:

“I was only advised of the outcome of the Appeal by my employer on 30th December, some five months later, and therefore I was still within my employer’s internal appeals procedure until that date and it would have been premature to make a complaint to the WRC before the completion of the procedure outlined in my contract of employment which I was obliged to follow.

I therefore believe that there is still a basis for my complaint to the WRC within the time limits outlined I the Unfair Dismissals Act, 1977.

I understand from my reading of the Citizen’s Information website that a claim for unfair dismissal should be made within 6 months of the date of dismissal but that this time limit may be extended to 12 months if there are reasonable circumstances which prevent the claim being made within the normal limit. I believe that those circumstances arise in my case and that my appeal should be allowed”.

The Complainant was invited to a disciplinary hearing on 26th June 2018. At this point the Complainant lodged a direct referral to the Labour Court under section 20 (1) of the Industrial Relations Act, 1969.

The Complainant was dismissed on 21st July 2018. Subsequently, the Labour Court scheduled a hearing for 5th September 2018 regarding the Section 20(1) referral. This was withdrawn with the Complainant stating that she would be addressing matters under the Unfair Dismissals Act. This withdrawal of the referral to the Labour Court was made on 30th August 2018.

On 24th September 2018 the Complainant wrote to the Appeals Officer, it is obvious when one reads this letter that the Complainant had the benefit of legal advice and knew exactly what she was doing. On 16th October 2018, having refused to attend the appeal hearing without legal representation, the Complainant wrote to the Appeal Officer, again it is obvious that she had the benefit of assistance from someone with knowledge of employment law.

The Complainant did not receive the outcome of her appeal until the end of December 2018, she still had almost three months within which she could have submitted a complaint to the Workplace Relations Commission.

I find that there is no reasonable cause to extend the time limit as outlined in section 41(8) of the Workplace Relations Act, 2015.

This being the case I am unable to hear the complaint under the Unfair Dismissals Act, 1977.

The complaint was made outside the statutory time limit of six months, there is no reasonable cause to extend this time. The Complaint is outside the jurisdiction of the Adjudication Officer.

Unfair Dismissal, Time Limits.