Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

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-00019696-001

11/06/2018

The complainant was employed by the respondent as a security officer on the 15th October 2016 and his employment ended on the 11th December 2017 and he referred his claim to the WRC on the 11th June 2016. He was paid 11.05 per hour and he worked a 40 hour week. He is claiming constructive dismissal.

The complainant was employed as a security officer and worked for the respondent in a shop in the Henry St area. The complainant said that a new store was opening in the Grafton St. area and the respondent asked the complainant and a team of 8 security officers to work there. New security uniforms were provided and the complainant attended at the store opening.   The complainant said that there were no difficulties with the store opening, but afterwards he was directed to return to work in the shop in the Henry St area. He was approached by his manager a couple of days later and asked to return the uniform.

The complainant said that he brought the uniform back to the office on Monday the 11th December as instructed. His manager was not in the office so he waited for him to return. He said that the manager was very aggressive towards him and he took the suit and threw it on the ground. He said the manager then shouted at him and told him to get out of the office. He tried to push him on the stairs. The complainant said that he went downstairs and rang the Gardaí and waited their arrival. He reported to the Gardaí what happened. He then went home and did not return to work.   He denied that any of the respondent’s staff tried to contact him. He then signed on for social welfare and he got his P45 on the 20th December 2017

The respondent denied that the complainant was dismissed.   The complainant’s manager said that the new clients did not request the complainant back after the night of the opening and the complainant was rostered back to work in the store in the Henry St. area. He said that he did not recollect asking the complainant to return the new uniform. On the 11th December he got a telephone call from the manager of the store that there was no security officer on site that day. The complainant was rostered for that day. The manager said that he was at a meeting and when he returned to the office the complainant was there holding the new uniform and he was not dressed for work. The manager said that he asked him if he was going to work and the complainant started shouting and using abusive language saying he was not going to work. The complainant was angry and continued to shout and he asked him to leave the office.   The manager said that he went to the store to cover the complainant’s roster for the day and shortly afterwards he got a phone call from the Gardaí enquiring if there was an altercation in the office. He explained what happened and the Gardaí never contacted him afterwards. The manager said that he did not dismiss the complainant as he has no authority to do so. He said that he thought that things would calm down and that the complainant would return to work.

The MD in evidence stated that when he became aware of what happened he met with the manager to hear about what happened.   He telephoned the complainant but he could not get an answer. He instructed the office staff to contact him but there was no answer.

The first matter I have to consider is whether the time limit for referring the complaint to the WRC can be extended. The complainant’s employment ended on the 11th December 2017 and the complaint was received by the WRC on the 11th June 2018 which is one day outside the statutory time limit for referring the complaint. The complainant sought an extension of the time limit because he did not know about the WRC and time limits until he went to Citizen Information. The respondent said that they had no objection to an extension being granted.

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,”

Therefore, I may extend the time limit for referring a complaint if reasonable cause is shown for the failure to refer within the statutory period. Thetest for deciding if an extension should be granted for reasonable cause has been 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.”

In relation to the complainants claim that he was not aware of the legislation, I have considered the case-law in Avery Weight-Tronix v Tom Kinsley DWT1244 the where the Labour Court stated:

“It is clear that the Complainant was not aware of his legal right to pursue a claim for annual leave and public holidays for the period from September 2007 until March 2010 prior to February 2011, by which time he was out of time to pursue his claim. 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. This was the clear import of the High Court decision in Minister for Finance v Civil and Public Services Union and Others.”

In applying the jurisprudence of the above cited case, I am not satisfied that the complainant’s lack of knowledge about his legal right to pursue a claim in relation to his dismissal constitutes “reasonable cause” for extending the time limit. I find that the complaint was referred outside the 6 month time limit and the complainant has failed to establish reasonable cause to extend the time limit. Therefore,I find I have no jurisdiction in the matter.

I find that the case was referred outside the statutory time limit for referring a complaint and for this reason I have no jurisdiction in the matter.

Unfair Dismissal Act, 1977, construction dismissal, statutory time limits.