ADJ-00006906

Complainant

Respondent

Anonymised Parties

An Employee 

 An Employer

Representatives

Self

Flynn O'Driscoll Flynn O'Driscoll Business Lawyers Claire Mc Dermott, solicitor. Mary Paula Guinness BL

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-00009091-001

16/01/2017

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other act as may be referred to in the 2015 Act,   made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for dispute resolution under Section 8 Unfair Dismissal Act, 1977 . The referral has been made outside the six month period of the initial circumstances of the relevant dispute/contravention.

The complainant stated that the last six months of her employment were very difficult. She was left with no assistance to process the voluntary redundancies. She found this extremely difficult as many of those leaving were personal friends of her. On top of that her mother was diagnosed with Alzheimer’s , her father was ill and she was in the middle of a difficult separation from her husband. She was very fragile at that time. It was for all those reasons she did not file her claim until the 16.01.2017. The complainant accepted that she resigned her position on the 16.12.2015.

It was submitted that the Complainant is out of time for submitting her claim. The Complainant resigned from her position on 16th December 2015 and therefore she is claiming constructive dismissal. In cases of constructive dismissal notice entitlement is not taken into account in assessing the date of dismissal

Without prejudice to the above the Complainant suggests in her email resigning that “As I have a months’ notice my exit date would be January 18th 2016”. It is clear that even if the notice period were to be added, the latest date on which the Complainant’s employment terminated would have been the 15th January 2016. A month is defined in the Statutory Interpretation Act 2005 as a calendar month.

Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'. It is submitted, therefore that if it is accepted that the date of dismissal is the date the Complainant resigned from her employment then the extension if granted can only bring the Complainant up until the 15th December 2016 for submitting her claim.

The Complainant did not lodge her claim until 16th January 2017 and therefore she is out of time on any assessment of the time limits and therefore it is submitted the Adjudication officer does not have jurisdiction to hear the case.

Without prejudice to the above argument “reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time. The Court stated “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 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 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 of 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 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 Complainant should satisfy the Court, as a matter of probability that had those circumstances had not been present he would have initiated the claim on time.”

In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should been 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 in Minister for Finance v CPSU and others .   The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation . 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 were justified in delaying the institution of proceedings. What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the Applicant on 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 link 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 complaint would have been presented 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 complaint 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.  

The reason being put forward for being out of time in the instant case is that variously the Complainant’s mother has been suffering from Alzheimer’s, her father has had a stroke, her own ill health and that she is going through a separation from her husband. It is submitted that the Complainant is an experienced Human Resources Manager who is familiar with the time limits that exist around lodging claims. From her LinkedIn profile (Annex 2) it is clear that she has been working since March 2016 as a Human Resource Manager with XXX a mechanical and electrical engineering contractor. It is submitted that if the Complainant has been holding down a responsible job as a Human Resource Manager since March 2016, the reasons put forward to show reasonable cause for the delay in submitting the claim neither explain the delay or afford a justifiable excuse for the delay. The onus of proof is on the Complainant to establish a causal link between the reasons proffered as an excuse and the failure to lodge a claim and it is submitted that she has clearly failed to do this. It is further submitted that account must be taken of her knowledge given her professional role in Human Resources.

O 10 June 2016 the Complainant sent a detailed email to the CEO requesting the following:

• Breakdown of my final salary as there appears to be discrepancies
• A copy of my employment contract
• copies of my timesheets from January 2015 to December 2015
• copy of the respondent’s Grievance policy at the time of my employment
• access to my emails
• confirmation of the year in which the president availed of a company directors loan

In addition, there was an email sent by the complainant on 9 October 2016 to the CEO asking for the legal registered name of respondent and asking for him to forward all emails from him to the complainant since April 2015 until her resignation in December 2016. With respect to the Complainant, it is quite clear that she was perfectly capable of writing detailed emails and assessing what her requirements were in relation to submitting a claim back as far as June 2016. It is submitted therefore, that if she was in a position to draft detailed emails requesting information from the college she was certainly in a position to lodge a claim within the correct time limits. It is submitted that for all of the above reasons the Adjudication Officer does not have jurisdiction to hear the claim. Without prejudice to the above the Respondent will address the claim that the Complainant was constructively dismissed.

It is agreed between the parties that the complainant resigned her position on the 16^th December, 2015. It is also agreed that she filed her claim with the WRC on the 16^th January, 2017.

It is well established law that when one resigns from their employment the notice period, in this case four weeks, is not added to the date of resignation. The date of termination is the date of the resignation, Stamp v McGrath UD1243/1983

InWalsh v Health Service Executive UD501/2007 , the Tribunal confirmed that the “date of dismissal” in such a case is the date upon which a Complainant submits his or her resignation and is not the date when the Complainant is notified of acceptance of that resignation.

I do not accept that the complainant’s personal circumstances, at the material time, prevented her from filing her claim. Despite a number of very upsetting and stressful events, the complainant was fit to write to the respondent on the 10th June, 2016 and the 9^th October, 2016 in relation to her claim. She was also holding down a HR position in third party company.

In circumstances where the complainant did not lodge her claim with the WRC until one year, one month and one day after the date of her resignation I do not have to consider the ‘reasonable cause’ argument. The complainant’s claim on any assessment of the time limits is out of time and accordingly I find that the claim is statute barred.

The complainant’s complaint ADJ 6906 CA 9091 is statute barred.