ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007199

Parties:

	Complainant	Respondent
Anonymised Parties	A Shop Assistant	A Service Station

Representatives

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00009712-001	14/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009712-002	14/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00009712-003	14/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00009712-004	14/02/2017

Date of Adjudication Hearing: 25/08/2017

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant had been employed in a service station since November 27^th 2009.

He was paid €485 per week for a forty three hour week. The employment ceased at the end of March 2016.

Summary of Complainant’s Case:

On or around March 24^th 2016 the service station initially ran out of diesel and shortly after that out of petrol.

The owner left the premises saying that a delivery of fuel would arrive.

This did not happen and the owner has not been seen since. A witness who had been the complainant’s manager gave evidence of trying to contact the owner but to no avail.

The complainant’s employment came to an end on March 29^th. He did not receive any notice and was owed both annual leave and public holidays. He did not receive any redundancy payment.

Summary of Respondent’s Case:

The respondent did not attend the hearing and no explanation was offered for failure to do so.

Findings and Conclusions:

The facts in this case are not in dispute and were corroborated by the complainant’s manager.

An issue of time limits arises in respect of the claims other than that made under the Redundancy Payments Act. The time limit for submitting a complaint under that last Act is twelve months but six under the other three.

The complainant attributed the delay in making the complaint to not being aware that he was entitled to do so.

The Workplace Relations Act 2015 permits an extension to twelve months where ‘reasonable cause’ can be shown.

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.

Section 41 (8)

However, this is not a matter which falls within a generalised discretion on the part of the Adjudicator.

In relation to the test applied in extension of time applications under the Acts, the most commonly cited dicta are those of the Labour Court in Department of Finance v IMPACT. [2005] E.L.R. 6.

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

The complainant in the current case does not meet these tests and therefore his complaints, other than that under the Redundancy Payments Acts are not within jurisdiction.

However, in respect of that complaint he was clearly made redundant and the respondent has not complied with the terms of the Redundancy Payments Acts 1967-2012.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

For the reasons stated above I do not uphold complaints CA-00009712-001, 002 and 003 as they were not made within the specified statutory time limits, nor was a sufficient case made out to extend them.

I uphold complaint CA-00009712-004 under the Redundancy Payments Acts 1967-2012 and award the complainant redundancy payment in line with the provisions of that Act on the basis of his service from November 27^th 2009 to March 29^th 2016 and subject to his having been in insurable employment between those dates.

Dated: 11 September 2017

Key Words:

Time limits, reasonable cause, redundancy,