Complainant

Respondent

Anonymised Parties

A Manager

A Creche

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-00012149-001

27/06/2017

The complainant was employed as a manager from 12 October 2015 and resigned her position on 8th November, effective 31st November 2016. This resignation she detailed was owing to the failure of the respondent to deal with behaviour of a shareholder.

Preliminary Issue:

The complainant’s employment ceased on 31st November 2015 and she submitted her claim to the WRC on 27th June 2016. The complainant accepted that she was outside 6 months within which to bring her claim to the WRC but cited that there were reasonable reasons for this which included that when she had to resign her position she was hospitalised for one day with a stress induced migraine that required IV antibiotics and had to continue with antibiotics for a month afterwards. She was also distressed to hear that the person who threatened her, Mr A, took up a position on the board in December 2016 and she did not wish to take a case if it meant that she would have to face him as she lived in fear of him. She did not believe that the respondent would call him as a witness if he was not on the board. She detailed that when she heard that he had stepped down in May she needed time to gather her papers together and submit her claim and that she was awaiting on documentation from the respondent which he failed to provide her with. She submitted that these were reasonable circumstances to justify acceptance of her complaint outside the 6 months but within 12 months, as provided for in the legislation.

Substantive Issue:

The complainant detailed that she was engaged as a manager with the respondent. She was also on the Executive Committee of the respondent’s organisation. The organisation was going through difficulties including changes in its structure, funding and questions over its continued survival.

The complainant outlined that approximately 1st November 2015, one of the shareholders of the respondent, Mr A came into the building and started shouting at her and was abusive asking why she was still with the organisation. She tried to close a hatch at the desk and he prevented it and threatened her that she should “not walk the streets” and that “she would get hers”, which she took to mean that he was threating her life. This was witnessed by two other employees one of whom, Ms B, gave evidence confirming some of the events as detailed by the complainant and that Ms B had also being abused by Mr A previously.

When Mr A left the building, the complainant felt very distressed and upset and went home and advised her manager Ms C and reported the incident to the Gardaí. The Gardaí advised that it was a public building and there was nothing they could do. The complainant detailed that Ms C had also been abused previously by Mr A. A few days later another shareholder, Mr D, came into the building and abused the complainant asking why she was still there. She detailed that she submitted her letter of resignation as she could not take this abuse but confirmed that in this letter she did not detail the real reason for the resignation as she knew her manager, Ms C, was under a lot of stress and did not wish to add to it.

Shortly afterwards she advised Mr E, a person whom she believed was the acting Chairperson, the real reason for her resignation in a letter to him. He replied that she should seek legal advice and asked did she wish him to forward it on to anybody else as he was not officially on the Board of the respondent’s organisation but was waiting for the assets to be transferred over.

The complainant did not reply to this and stayed on with the respondent until the end of November working from home as she felt that she did not want to let the respondent down and that in this way she would not have to engage with Mr A.

In cross examination she confirmed that she had organised meetings for shareholders which she attended albeit she knew that Mr A would be attending but that she did so as it would be a public forum and she believed that he would not threaten her in a public forum.

With regards to mitigation of loss, the complainant detailed that she was working 20 hours with the respondent when she resigned and 35 hours with another organisation.   She remained with this other organisation until February 2017 when her contract was not renewed.   She secured employment in April 2017 and remains working to date despite what she described as attempts by others, to discredit her by sending anonymous letters.

Preliminary Issue:

The respondent detailed that the complaint is out of time and that no reasonable cause was offered to allow the statutory time limit of six months to be extended.

It was disputed that the complainant was too unwell to put forward her claim and that no medical evidence had been put forward in relation to same. It was also disputed that the complaint felt too ‘unsafe’ to advance her claim owing to the alleged actions of Mr A, as she had been able to engage with Mr A and other shareholders on occasion in her role as a Board member after the alleged event. It was also detailed that if she was fearful of Mr A, it did not stop her making a complaint to the Gardaí.

Caw law cited included Cementation Skanska and a Worker (DWT0425) and Salesforce.com and Ali Leech (EDA1615).

Substantive Issue

The respondent disputed that the complainant resigned her position owing to the alleged behaviour of Mr A and the failure of the respondent to deal with same. Details of her initial resignation letter were provided which was undated but submitted around 8th November 2015 which made no reference to the incident with Mr A. This letter detailed that her decision to resign was owing to her temporary position “to assist during maternity leave” and that the complainant had “a new full-time position and cannot manage both”. In response to the complainant that a second letter of resignation was given to the Mr D, whom the complaint assumed was chairperson. It was also advised that Mr C had told her he was not the appropriate person and suggested that if she wished he would forward it to the relevant parties but he received no response from her.

The respondent confirmed that the organisation was going through many difficulties at the time and that the key priority of the organisation was to ensure its survival for the employees and children who were in the creche.

It was further submitted that if the complainant was unhappy with the respondent’s behaviour, then it was extraordinary that she continued working with the respondent for nearly a month afterwards which did not give the impression of someone unhappy with their workplace. It was also outlined that the respondent only became aware of the grievance when papers were submitted to the WRC.

Evidence from Ms C

Ms C who was the complainant’s manager, confirmed that she emailed details of the incident with Mr A to others on the committee and that is was a very difficult time for everybody.   She detailed that she asked the complainant not to resign when she received the complainant’s original resignation letter.

Evidence of Mr E

He detailed that he did receive a letter from the complainant detailing that she was resigning owing to the incident but that he advised her that his role was not official as assets had not been transferred. He was in effect a Director of “nothing”. In cross examination he did confirm that he had allowed his name to be used for some ‘official’ documents as he knew there was nobody else who could sign them and accepted that he did not have “authority” for this as assets had not been officially transferred.

Evidence of Ms F

Ms F detailed that she is the current chairperson but was not aware of any issues until she received documentation from the WRC.

Preliminary Issue:

A preliminary issue was raised with regard to the claim being submitted after six months with the complainant’s final day of employment being 31st November 2016 and the claim lodged on 27th June 2017.

Section 8(2) of the Unfair Dismissals Acts, as amended states that:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to 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,

If a complaint is submitted after six months it must be owing to “reasonable cause”. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:

  “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.

It was detailed by the Labour Court in Salesforce.com v Leech EDA1615 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 complaint   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 O’Donnell v Dun     Laoghaire Corporation [1991] ILRM 30, 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 complainant detailed her delay in submitting her claim was owing to a number of reasons including that she was unwell from the stress of what occurred including a one-day hospitalisation and antibiotics up to approximately mid-January 2017.   I note that the complainant confirmed she did not undergo any counselling or psychological-type treatment regarding this incident and no medical evidence was provided regarding medical treatment during this time. I note that the complainant detailed she was afraid to submit her claim as Mr A was on the board and she did not feel that she could face him at the WRC but I also note that she was able to make a complaint against him to the Gardaí when the incident occurred. She was also able to engage with him and raised no objection to same when organising shareholder meetings. It is also noteworthy that even when she became aware that Mr A was no longer on the Board, the complainant waited another month before she submitted her claim.

Taking all the evidence into consideration and having considered the Labour Court authorities, I am obliged to find that the claim of unfair dismissal cannot proceed as the complainant has not shown reasonable cause, therefore, it is statute-barred pursuant to section 8(2) of the Unfair Dismissals Act, as amended.

I decide that the complainant has not shown reasonable cause to allow the claim to proceed in circumstances where the complaint was referred later than six months of the date of dismissal. I, therefore, have no jurisdiction to hear the complaint.

Unfair Dismissals Acts – constructive dismissal, reasonable cause