Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00014764-001

02/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00014764-002

02/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00014764-003

02/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00014764-004

02/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014764-005

02/10/2017

The complainant had been employed by the respondent between April, 5th, 2000 and September 21st 2007 when his employment ended.

These complaints were submitted on October 2nd 2017.

The complainant makes five complaints;

CA-00014764-001 arises under the Industrial Relation Act, 1946. At the hearing the complainant stated that this was a claim for compensation for medical expenses incurred after a work-related accident. It appears on the complaint form as a complaint regarding the application of an ERO. (No ERO applies in this sector).

CA-00014764-002 is a claim for payment of disability benefit under the Industrial Relations Act, 1969.

CA-00014764-003 is a claim under the Pensions Act, 1990 as amended for the payment of an occupational pension and complaints CA-00014764-004 and 005 are complaints of penalisation under the Safety, Health and Welfare at Work Act, 2005 and the Employment Equality Act 1998 respectively.

The complainant had been engaged lifting boxes of pizza which weighed 25kgs and he sought to transfer to lighter duties, which was refused.

Eventually this process was automated and he was transferred to other, similar duties. Eventually, after some further difficulties a new manager did transfer him to a more suitable position.

Despite a diagnosis of high blood pressure he continued to be assigned to what he regarded as unsuitable work.

All of this resulted in repetitive stress injury. The occupational physiotherapist recommended his transfer to lighter duties but this did not happen. He also complains about various episodes of alleged harassment.

He regards all of this as harassment and racial discrimination which resulted in serious damage to his health. He supplied a great deal of detail on these incidents.

He says that he eventually resigned from his position out of fear.

All of the complainant’s allegations under the Pensions Act, 1990 are out of time and were not submitted within the statutory time limits. The alleged contraventions happened over 6 months ago and there are no perceived exceptional circumstances to be considered.

The same applies to the complaints under the Health, Safety and Welfare at Work Act, 2005, the

Employment Equality Act, 1998.

All of the claimant’s Industrial Relations Act claims should be disregarded as specific dates, or details, of any alleged contraventions have not been made clear.

Also, while aware that there is no time limit enshrined within the Industrial Relations Acts, there is an expectation that a complainant behaves in a manner that is fair and reasonable to the respondent.

All other employment law envisages clear timeframes for a very good reason, and the fact that the complainant’s employment ended over a decade ago means it cannot be considered fair and reasonable for the respondent to formulate a cogent and appropriate response to these allegations.

The complainant alleges that he has been discriminated against on the grounds of disability and race.

The company rejects the allegations that the claimant was discriminated on the grounds of race and/or disability, and indeed any other allegation of discriminatory treatment that may be cited as

part of this claim.

Finally, the complainant signed a severance agreement, a copy of which was exhibited on September 21st, 2007 and which included consideration and which included a waiver against the pursuit ‘of any and all claims’ against the respondent.

There are two preliminary issues.

The first concerns the time limits.

The delay in making the complaints, some ten years and a month is quite extraordinary.

Most employment statutes provide for a complaint being made within six months, and twelve if reasonable cause can be established (subject to the legal principles that govern it). The limits are double these in the case of redundancy.

There are no time limits specified in the Industrial Relations Acts.

Then there is the second preliminary issue of the complainant’s having signed a waiver against ‘all and any claims’ against the respondent in September 2007.

At the hearing the complainant stated that he signed this on the basis of misrepresentation by the respondent. However, the document he signed contained a standard clause to the effect that he had been offered the opportunity to take professional advice, as follows;

‘I was advised to seek independent legal advice on the matter and I have read over this document and I understand and accept the contents herein’.

It would be a challenging enough task for a complainant to dispute terms such as these within a reasonable time frame of having signed it, but to seek to do so over ten years later becomes a near impossibility and it is hard to imagine any circumstances in which it might succeed.

Similar comments apply to the cases under the Industrial Relations Acts in respect of delay. While those Acts provide a means for bringing complaints outside the usual statutory time limits, the extent of any delay, and the reasons for the delay are nonetheless factors in considering their admissibility.

At all stages an Adjudicator will apply principles of natural justice, which also extend to a potential respondent, and excessive delay will be a consideration in this respect.

A complainant must prosecute a complaint within a reasonable time and with a reasonable explanation for any delay. To borrow from the general jurisprudence on time limits this must both ‘explain and excuse’ the delay, even within the more generous provisions of the Industrial Relations Acts.

There may well be an explanation which would do so, even up to a number of years, and this will depend on the facts of each case. However, it is difficult to see any explanation which would cover a ten-year gap and nothing remotely resembling one was offered in this case.

These latter comments apply to complaints CA-00014764-001 and CA-00014764-002.

Complaints CA-00014764-003 CA-00014764-004 and 005 have not been made within the statutory time limits, even at their outer limits.

In any event, I consider the complainant bound by the terms contained in the Severance Agreement of September 21st, 2007, which he confirmed that he signed.

I dismiss his assertion that this was the result of any misrepresentation.

For the reasons set out above I do not uphold complaints CA-00014764-001, CA-00014764-002,

CA-00014764-003, CA-00014764-004 and CA-00014764-005 and they are all dismissed.

Time limits, Waiver agreement, jurisdiction.