Complainant

Respondent

Anonymised Parties

A Senior Lecturer

A University

Representatives

Appeared in Person

Mr Paul Ryan, Employee Relations Manager.

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-00010545-001

30/03/2017

This is a case concerning a claim for constructive dismissal which is rejected by the Respondent. A primary issue on time limits arose.

The Complainant commenced work as a Lecturer at the Respondent University in 2005.and moved to a 5-year fixed term contract at Senior lecturer level in 2011.

The Complainant presented as a lay litigant and gave an outline of the background to his case on his complaint form submitted on 30 March 2017. The Complainant has submitted that he was constructively dismissed due to 3.5 years of intolerable behaviour. He stated that he left his post through cost neutral early retirement at the end of September 2016, which constituted his earliest opportunity while juggling domestic commitments. He projected prospective loss of earnings short of 100,000 euro over the two years as his pension now amounts to 510,00 euro per month, 7% of his salary.

Preliminary Issue – Time Limit

The Complainants complaint was received by the WRC on 30 March at 21.25hrs ,2017. On April 11,2017, the WRC remarked that the complaint appeared to be outside the statutory time limits. The Complainant was requested to make a submission on reasonable cause if so desired. On 24 April, 2017, the Complainant submitted his submission which can be summarised below.

1 The time allowed for the claim was less than 6 months as the Unfair Dismissal Act 1977 available by hyperlink on the WRC website referenced “within 6 months of the date of the relevant dismissal”

2 The Complainant interpreted this as exactly 6 months from the moment of dismissal i.e. end of day on 30 March 2017. He submitted that he was not aware of the time limit ending on the day before the expiry date. This was subsequently explained to him through the WRC information service.

3 The Complainant submitted that he needed all his available time to seek to mitigate his losses and build up replacement work opportunities.

4 The Complainant applied for an extension on reasonable cause grounds based on his misunderstanding of the parameters of the statutory time limit.

The Complainant was asked to make a supplementary submission on his application for reasonable cause and furnished this on September 1 where he re-affirmed the April 24 submission. He rebutted that the University had standing to comment on his omission to submit the form within the statutory time frame as a “failure”. He clarified that his application for an extension on reasonable cause arose from information available on the WRC website. The Complainant denied the application of ADJ 2555 as he had not relied on being busy as a rationale for the late submission. The Complainant disputed the relevance of UD 1624 as an application on appeal rather than of a case of first instance at adjudication.

Substantive case

The Complainant outlined that he had taken on additional duties to his Senior Lecturer role towards the end of 2011, which proved challenging and he sought to recuse himself from this extraneous workload.

He submitted that his negative experiences began in 2013 during a period of ongoing normal academic flexibility, needed to maintain support for his daughter was unilaterally withdrawn. He was requested by his head of Department to submit a time table of presence and revert to a defined 9 to 5pm work pattern. The Complainant was unaware of a reciprocal request being made of fellow academics. The Complainant submitted that on March 19, 2013, he was asked to relinquish his Senior Lecturer position and normal flexibility would be restored if he agreed. He recalled being offered unpaid leave or part time work. He rejected the request on financial grounds. The Complainant submitted that he believed that he was being compelled to attend at the University on a very restrictive basis and any submissions he made to his superiors went unheeded. He gave evidence on the breadth of his flexibility in availability for the University over weekends and evenings.

The complainant detailed several occurrences which made him seriously concerned that he was being bullied. On occasion, he hid in his office

1 Picked up on his attendance at final year student presentations

2 A disagreement on workloads during an “away day”

3 Excessive project marking workload

The Complainant approached the college Ombudsman for support and a meeting was arranged for June 14, 2013 with the Head of Department, where he was pressed to attend work on 9 to 5 pm basis. He recalled being threatened in that regard and was unsuccessful in seeking the support of the Ombudsman representative in seeking to action a complaint of lack of Dignity at Work. The Complainant followed this with period of 4 days’ sick leave. The Complainant submitted that a reasonable person would have left the position in 2013 but he had the responsibility of dependents and his wife was unable to work in her chosen profession. He confirmed that he brought in 80% of family income

The Complainant attended another meeting with his Head of Department and a Human Resource representative on 12 July 2013 and introduced a tape recorder to the process, which was reluctantly accepted. The Complainant confirmed he wished to move to part time working and the University agreed to accept that position. He submitted that he had been traumatised in his dealing s with his management team and he needed to protect himself.

The Complainant was referred to Occupational Health Services on July 22, 2013.and obtained the resultant report through Freedom of Information. The University then resiled from granting him part time working as Human resources informed him that he was obliged to submit his Dignity at Work complaint prior to his application for part time being considered.

The Complainant detailed an onerous journey in pursuance of documentation critical to his case and stated that it had taken him two years to secure of a copy of just how his application for part time working had been obstructed.

The Complainant submitted that further conflict with his Managers followed efforts by him to confine his working time within the parameters of the Organisation of Working Time Act 1997 and he eventually got some breathing space when he passed his two-year probationary period late in 2013.

The Complainant did some background work to check out the viability for effective financial management and formulated a plan that he would apply for early retirement. In October 2014, amidst fears that the application may be blocked, he made an application for early retirement to coincide with September 2016.This was approved by the University Financial Committee in May 2015.

The Complainant submitted that he had a further unsatisfactory meeting with a newly appointed Head of School where he was actively discouraged from taping the meeting. On this occasion, he contended that his Head of Department had furnished a factually inaccurate report on him which dovetailed into a Disciplinary meeting. He objected to this misapplication of the Disciplinary procedure. Further discord followed at Academic Meetings where he was remonstrating for taping proceedings.

By November 2015, the Complainant decided that he needed Union support and was encouraged to explore a face to face meeting with his Head of Department, which he could not countenance. Left with no other course of action, the complainant concluded that he would have to await his leaving date before acting for constructive dismissal.

The Complainant worked part time for the remaining year of his left with the support of accumulate annual leave after exams 2016.

The Complainant submitted that he had no realistic alternative outside leaving to get away from behaviour directed towards him by hi shed of school

1 Pressure to step down from promoted position.

2 Rigidly prescribed working hours

3 Multiple instances of problematic behaviour

4 Bullying in accordance with the University Policy.

The Complainant referred to the timing of his complaint as being just ahead of the 6-month deadline and attributed this to his having being under intense time pressure since leaving work. He gave some evidence on mitigation of loss.

During cross examination, the complainant confirmed that he couldn’t remember mentioning organisational bullying previously. He confirmed that he had not made a written complaint about his negative experiences and denied activating the grievance procedure or Dignity at work policy. He attributed this to not being in a sufficient emotional state to undertake this.

The Complainant denied seeing a difficulty in making allegations without giving the accused an opportunity to respond. he states that he did not refer to others. He understood that a formal complaint was a necessary precursor to invoke procedures. He confirmed that he had not submitted a complainant under the Organisation of Working Time Act. He stated that he had insufficient time. He confirmed that he joined the Union during 2014 and he was not covered for events which predated this.

In answer to the Respondent questions, the complainant stated that he did not understand the reservations shared by managements about the reference to bullying left unaddressed. He stated that most of what he experienced on the negative front emanated from the Head of Department, but he didn’t want something formal to go into his record. he wanted an independent advisor.

The Complainant concluded by reaffirming the impact that the Dismissal had on him personally and financially.

Preliminary Issue – Time Limit

The Respondent submitted that an Adjudicator may not entertain a complaint under Section 8 of the Unfair Dismissals Act ,1977-2015 if it has been presented after the expiration of 6 months beginning on the date of contravention. The Employee Relations Manager submitted that the Complainant had resigned his position, his employment ended on 30 September, 2016 and his complaint was received on 30 March, 2017, which was outside the statutory time limit.

The Respondent addressed the application for an extension of time due to reasonable cause. The Respondent submitted that the complainant had confirmed that he met with a Trade Union Legal Officer in November, 2015, where he concluded that he would have to wait until he left the University “to action a claim for constructive dismissal “. This did not demonstrate reasonable cause. The complainant also referred to being busy building two small businesses which did not amount to reasons for securing an extension on the time limits.

The Respondent relied on:

ADJ 2555 (Employment Equality a Complainant v A Third Level Institute of Education)

EET 121 Abbot Vascular and Baggot

In addressing the complainants formal request to extend the time lines lodged with the WRC on 21 April 2017,The Respondent submitted that the complainant had acknowledged that he had failed to submit his complaint in time and referred to an analogous set of circumstances in Galway and Roscommon ETB v Josephine Kenny   UD/1624.In this case the Labour Court did not hear the appeal as it was lodged one day outside the time limit , where a miscalculation of time was “ akin to a misinterpretation of the statutory provisions” .

The Respondent referred to Section 18(h) Of Interpretation Act 2005:

Periods of time. Where a period is expressed to begin on or be reckoned from a day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period”

The Respondent submitted that the complainant had had the benefit of legal advice prior to submitting his complaint and that Ignorance of the law or the procedures does not satisfy the test for reasonable cause.

The Respondent made a supplementary submission on recent Labour Court jurisprudence;

Salesforce .com and Leech EDA 1615, Cementation Skanska v Carroll DWT 0338

1 The Complainant delayed in submitting his complaint.

2 No causal connection between the facts and the delay was made

3 The complainant is unclear on the basis he requests reasonable cause extension.

Substantive Issue

It was common case that the complainant secured the role of Senior Lecturer in 2011 for a five-year period. In January 2013, the complainant notified his managers that he intended to withdraw from an aspect of the course. The Complainants probation report form was deferred pending clarification on three research papers.

Correspondence was exchanged between the parties on the complainant’s attendance regime at the University from which shortfalls which had come to light. Nothing was decided on how best to move forward but the complainant made an application for part time working.

The Respondent took issue with the complainant’s latter reference to Organisational Bullying as it had not featured in his earlier deposition.

The Respondent received submissions from the complainant on excessive working hours and the complainant was asked to attend work 9 am to 5.30 pm daily, Monday to Friday. the Respondent deferred the part time application pending a direct engagement between the complainant and his Head of School to address the complainants stated intention of making a formal complaint under the Dignity at Work Policy.

The Respondent submitted that the complainant refused to proceed with his formal complaint until his application for part time had been approved and he refused to work a fixed working week. The Respondent suggested a Mediation process under the University Dignity at Work Policy. The Complainant rejected the proposal in favour of addressing his hours of work. The Respondent submitted that they experienced some difficulties when the complainant insisted on taping proceedings and a meeting set for October 2 and 16, 2013 were cancelled. The Complainant was offered the facility for representation. the Complainant confirmed that he did not want to lodge a formal complaint and that he had not used the term bullying.

The Respondent continued to have difficulty with the complainant desire to tape meetings and this was remarked on during an exchange with the new Head of School in August 2015 when the complainant acknowledged that his actions had breached some exam procedures.

The Respondent granted the complainant application for early retirement under the cost neutral scheme on 23 May 2015 effective from £0 September 2016. On 9 March 2015, the complainant commenced working part time. the Complainant received 32,620 euro in lump sum payment and 6,172 euro per annum in pension, these sums are currently under appeal incorporating a claim for professional added years.

The Respondent had denied that a dismissal took place in the case and instead the complainant had voluntarily taken early retirement. The Respondent further disputed that a constructive dismissal had occurred as generally this requires the employee o exhaust all avenues of dispute resolution such as internal grievance or other relevant procedures before leaving or resigning. Harrold V St Michaels House UD 1123/2004.

The Respondent submitted that they had afforded the complainant every opportunity to address complaints in relation to his employment. The Complainant availed of the services of the Staff Ombudsman working in a mediator capacity, Occupational Health service, and had access to the Employee Assistance Programme. The Complainant did not activate the University Dignity at Work Policy or the University Grievance procedure. The Complainant had the benefit of Trade Union and Legal advice.

The Respondent referred to case law from EAT UD 1899/2011 where a complainant insistence on seeking that his father attend meetings outside the usual framework of Tarde Union representative or work colleague and subsequently failed to establish grounds for constructive dismissal.

The Respondent confirmed that the complainant was subsequently re-employed to cover teaching at the University in the second semester of academic year 2016 /2017.

The Respondent re-iterated the measures taken by the respondent to address the complainants cause for concern 2013-2016. He had an undisputed right to raise formal complaints but there were no complaints. It was important for the University to balance the complainant’s rights with the rights of other employees. the University completely rejected the amended reference to Organisational Bellying. The University contended that it had discharged its duty towards the complainant and rejected his claims in their entirety.

On the first day of hearing, August 3, 2017, I heard both party’s submissions on statutory time limits followed by opening statements from both parties. It became apparent to me as the complainant sought to pose questions of the respondent that he had not submitted the documentation he was seeking to refer to. I believed that he was disadvantaged by this and requested that he submit this documentation first referred to in his letter of complaint.

I adjourned the hearing to allow for this submission within a specific time line. In addition, the Complainant had made repeated reference to advice which he had received from Solicitors, a Union and other bodies. I asked that the complainant use the period of adjournment to consider whether he wished to avail of representation by these bodies in the case. The Complainant returned for the November hearing as a Lay litigant in the company of his wife and daughter, whose attendance he requested as his scribe. I remined the parties that taping of proceedings was strictly forbidden.

I also asked the Respondent whether they wished to consider having witnesses at the resumed hearing? The Respondent did not rely on witnesses and ran the case on extensive written and oral submissions.

I have carefully considered the request submitted to extend the statutory time limit in this case. I have also considered the extensive case law submitted by the Respondent and comments furnished by the complainant in response. As an Adjudicator, I am bound to work within the statutory time limits pertaining to Section 8(2) of the Unfair Dismissals Acts as amended by the Workplace Relations Act of 2015.

S.8(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,  

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General 

The Complaint before me was lodged at 21.25 hrs on 30 September 2016.There was no dispute over this date. This brings the claim into the territory of 8(2)(b) of the Act where the Complainant has sought an extension of time limits on reasonable grounds.

The Complainants submissions on reasonable cause were grounded on incorrect information available on the WRC website. I have some difficulty with this position as I did not receive any documentation on this discrepancy. The Complainant made a supplementary submission post hearing date and submitted information which I did not request.

The Respondent has consistently argued that the claim has been statute barred and could not envisage a safe application of reasonable cause. In so doing, they advanced considerable caselaw which was rejected by the complainant.

It now falls to me to decide on the application for Reasonable cause. On the first day of hearing, the Respondent sought an outcome on the Preliminary issue . I explained that the WRC procedures required me to hear both the Preliminary Argument and the Substantive case and I would then issue a decision in the case. The right of appeal would then be to the Labour Court.

The claim was submitted outside the statutory time limit and I have sought to look behind the circumstances of this delay to ascertain whether I can grant the extension sought?

The established test for deciding if an extension should be granted for reasonable cause is that formulated by the Labour Court in Labour Court Determination:

WTC0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, which drew from the High Court case of O Donnell V Dun Laoghaire Corporation {1991] ILRM 30.

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, 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.

The length of the delay should be considered. 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.

In the instant case, the Complainant contended that he was misinformed by the WRC website on the window of time permitted to lodge his claim. He did not offer a cogent reason why he waited for such an extended period before advancing his complaint. It was clear from the complainant’s evidence that he formulated a plan to lodge a claim for constructive dismissal towards the end of 2014 and his application for early retirement on a cost neutral basis was his financial enabler to leave his employment. I have a difficulty in accepting that the complainant delayed in lodging his application in time. The complainant was clearly conversant with administrative procedures and there were no other discrepancies on the complaint form.

In applying the Cementation test to the facts as presented, I have established that the Complainant in the case was under the clear impression that his complaint was lodged in time and the first he knew of its difficulty was when he was alerted by the WRC. He made several submissions in seeking reasonable cause to secure an extension in time.

In applying Skanska to the facts of this case. I find that the complainant has explained the delay but I cannot establish that the reasons advanced constitute a justifiable excuse for the actual delay,given the plan to take a case was germinating for almost a two-year period. Sales Force.com V Leech EDA 1615.

The presiding Act in this case is the Unfair Dismissals Act, I appreciate that the complainant is a lay litigant, however from the first day of hearing, I established that his planned course of action was discussed with a variety of employment law practitioners and I accept the Respondent contention that the complainant had legal advice at his disposal prior to initiating his claim to guide an in-time application. It is unlikely that the complainant was advised to delay the claim until the last minute. I was also struck by the complainant’s short term return to work at the University during the timelines referred to in this case.

The Labour Court determined in Rezmerita ltd v Uciechowska DWT 1019

“ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint cannot provide a justifiable excuse for a failure to bring a claim in time”.

Finally, in seeking to exercise my discretion on whether to grant an extension due to reasonable cause? I am mindful that the Respondent was not on notice of an impending claim at any time from 30 September ,2016 to the date the Respondent was notified of the complaint on April 11, 2017 . I find that the Respondent is prejudiced by that omission and taken together with my comments on the above-mentioned shortfalls, the application for reasonable cause cannot succeed. I have not established that the complainant has demonstrated that he has a strong arguable case.

The facts surrounding the delay are unfortunate, and I appreciate that the delay was a short delay However, the test in Cementation has, in my view not been made out. I must find that the claim is statute barred and I lack the jurisdiction to hear the case .

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide 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 constructive dismissal is statute barred and I lack the jurisdiction to hear the case.

Constructive Dismissal. Statutory Time Limits.