Complainant

Respondent

Anonymised Parties

A Warehouse Supervisor

A Warehouse Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016394-001

19/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016394-002

19/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00016394-003

19/12/2017

The complainant referred a complaint under the Unfair Dismissals Act, the Terms of Employment (Information) Act and the Minimum Notice Act on the 19th of December 2017. He was employed by the respondent as a warehouse operator on the 1st of November 2006 and he was dismissed on the 29th November 2016. The complainant is claiming that he was unfairly dismissed contrary to the Unfair Dismissals Act, 1977 and that he was dismissed without his statutory notice entitlement pursuant to the Minimum Notice and Terms of Employment (Information) Act, 1973. He is also claiming that he did not receive a statement under the Terms of Employment (Information) Act, 1994.

It was submitted these claims were previously referred to the WRC under reference No ADJ -00006408 and was listed for hearing on the 2nd June 2017. On that day the matter was settled between the parties. The following paragraphs are the relevant terms of the agreement:

“1.The respondent shall pay to the Claimant the sum of €30,000 (hereinafter referred to as “the settlement sum”) in six equal monthly instalments of €5,000.00. The first of the said instalments to be paid no later than the 9th of June 2017 to the complainant’s solicitor.   The balance of the five remaining payments to be paid on the 9th of each calendar month until the settlement sum is discharged.

3. Without prejudice to the Claimant’s rights under contract, in the event of default of the Respondent in maintaining the schedule of payments set out at paragraph 1 above.

4 Upon discharge of the settlement sum of €30,000 the Claimant shall strike out the claim before the Adjudicator.

5 In the event of the insolvency of the Respondent, it is agreed between the parties that these terms of settlement shall not prevent the Claimant re-issuing his above-mentioned claims and extending the time to so do for reasonable cause.

6. In the event of insolvency as set out above, the Respondent hereby consents to a decision of the Adjudication Officer or the Labour Court as the case may be, awarding compensation to the Claimant in the sum of any amount that remains outstanding from the settlement sum.”

€20,000 of the settlement sum was paid in 4 instalments. The October and November instalments due to be paid on the 9th of the month were not paid. The complaint was closed in the WRC on the 20th November 2017 and the respondent company went into liquidation on the 21st November 2017.

The barrister for the complainant submitted that unfortunately by the time it became clear the outstanding sum of €10,000 would not be paid the ADJ-00006408 file was closed. It was submitted that in order the recover the €10,000 under Section 6 of the Protection of Employees (Employers’ Insolvency) Act 1994, the complainant requires a decision on the complaints from an adjudication officer. The complainant’s solicitor sought to re-enter the original complaint, but as the original complaint was closed it was not possible.

The complainant then referred a new complaint concerning the same set of facts to the WRC on the 19th December 2017 seeking a determination pursuant to paragraph 6 of the settlement agreement as set out above, that the complainant is entitled to compensation in the amount of €10,000 under the Unfair Dismissals Act, 1977, the Minimum Notice and Terms of Employment Act, 1973 and the Terms of Employment (Information) Act, 1974.

The company is in liquidation and the liquidator did not attend the hearing. In a letter to the WRC the Liquidator confirmed that the company was in liquidation and there are no funds available to discharge any amounts awarded. Any awards will have to be claimed from the Insolvency Fund.

The first matter I must consider, before I consider whether I have jurisdiction to consider the substantial complaint, is to decide whether these complaints were referred within the statutory time limits as set out in the Workplace Relations Act 2015 and Section 8(2) of the UD Act 1977 – 2015.

Section 41 (6) of the Workplace Relations Act 2015 provides: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41(8) provides “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 8(2) of the UD Act 1977 – 2015 provides:

“ (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,”

The complainant was dismissed without notice on the 29th November 2016. It was submitted by the complainant’s counsel that he was entitled to 6 weeks’ notice and the correct date of dismissal was the 10th January 2017. To comply with the statutory 6 months time limit the complaint must be referred to the WRC by the 9th July 2017.   This complaint was referred to the WRC on the 19th December 2017.

It was submitted by the complainant’s counsel that the complainant is entitled to an extension of the time limit to 12 months for reasonable cause as it was a term of the agreement between the parties. It was submitted that both the complainant and the respondent have consented to the extension of the time limit and the reasonable cause relied upon is the terms of settlement agreement. It is also a term of the settlement that if the company went to liquidation it was agreed that the claim could be reissued and the time limit extended.

The terms of the agreement cannot supersede my powers to consider and determine whether there was reasonable cause shown for the delay in referring the claim. Therefore, I will examine the reasons put forward for the delay.

I note that it was a term of the settlement at paragraph 1 above that €30,000 was to be paid to the solicitor for the complainant in 6 instalments of €5,000 starting on the 9th of June 2017. The complainant’s counsel submitted that the respondent paid 4 instalments and defaulted on the instalments due on the 9th of October and the 9th of November 2018. I note that the claims remained open before the adjudicator until the 20th of November 2017, and the company went into liquidation on the 21st November 2017. I further note that the WRC wrote to the parties on the 15th December 2017 stating that the adjudicator had informed them that the matter referred in ADJ-00006408 had been settled and consequently the Commission had no further jurisdiction in the matter. The complaint herein was referred on the 19th December 2018, and it would appear it was referred in response to that communication. I note that, even though the respondent was in default in the payment schedule for October and November, the complainant did not seek to re-activate the complaint reference ADJ-00006408 before the adjudicator until the 15th of December 2017.      

Thetest for deciding if an extension should be granted for reasonable cause is set out by the Labour Court in Determination No. WTC0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. The relevant passage is: “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, 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.

The length of the delay should be taken into account. 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. 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.”

This reasoning was followed by the Labour Court in the case of Kepak Group v Valsomiro Augusto Arantes UDD1625, the Court stated in relation to an application for the extension of time limits:

“In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should be 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 & Ors [2007] 18 ELR 36.”

The Labour Court went on to say:

“It is for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay.”

Having applied the above jurisprudence, it is clear there was no satisfactory explanation or reason was given for delaying the referral of this complaint until the 19th December 2017.   I am not satisfied that the complainant has demonstrated that there were particular circumstances present which prevented him from referring the complaints immediately on learning of the first default in October 2017. I am satisfied that the complainant has failed to establish reasonable cause for the delay. For these reasons I am not exercising my power to extend the time limit for referring the complaints. I find therefore, that the matter was referred outside the time limit and the complainant has failed to establish reasonable cause for the delay. Therefore, I have no jurisdiction in the matter.

I find that the complaint was referred outside the statutory 6 months- time limit for referring a complaint and I have no jurisdiction to hear the complaint.

Unfair Dismissals Act 1977, Terms of Employment (Information) Act, 1994 and Minimum Notice and Terms of Employment Act, 1973, Liquidation, Statutory time limits, Compromise Agreements.