ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007742
Parties:
| Complainant | Respondent |
Anonymised Parties | Contracts Manager | A Security Company |
Representatives | Loughlin Deegan Byrne Wallace | Ruairi De Burca De Burca Solicitors Mahon Corkery BL |
Complaint:
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-00010389-001 | 23/03/2017 |
Date of Adjudication Hearing: 06/10/2018 and 18/12/2018 and 21/03/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
This matter comes before the Adjudication Services on foot of a workplace relations complaint form dated the 23rd of March 2017 and has been initiated in consequence of the Respondent Employer’s decision to terminate the Complainant’s employment by letter dated the 31st of March 2017 (Save insofar as an allegation of constructive dismissal is also live).
The fact of termination of employment is not in dispute, and the Respondent accepts that the burden of proof rests with it to demonstrate that it has acted fairly, reasonably and with justification in all the circumstances, per
Section 6(1) of the Unfair Dismissals Act 1977 :
“Subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act to be an Unfair Dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal”
Both parties opened up this case by way of written and oral submissions. These have been comprehensively considered by me as has the significant amount of oral evidence I have heard which was tested through cross-examination.
The parties accepted that there was a preliminary issue to be dealt with :-
The Workplace Relations specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Delay and Reasonable Cause:
The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5):
“Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”
The Labour Court stated:
“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 in 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 a 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.
Summary and Conclusions:
I have carefully considered the evidence adduce over the course of three days of hearing. The Complainant is a successful business woman who, having retired from the Gardai Siochana, started a cleaning company which enjoyed a successful trajectory securing lucrative commercial Contracts and having a loyal, motivated and safety conscious workforce. The Complainant was approached by a Security Company seeking to get into the commercial cleaning market as being a good fit with the security services it provided. After some negotiation the parties agreed a price and the Complainant sold her company to the Security Company. In order that the take-over would be as smooth as possible, it was agreed that the Complainant would remain in situ for a period of six months to oversee transition and to provide her workforce with the re-assurance that they their interests would not be lost in transition. This arrangement started in and around early 2015. It was agreed by the parties in the course of the hearing before the WRC that the Complainant became an employee of the Respondent company i.e. the Security Firm that had taken over the Contract cleaning company and that all complaints were as against this entity. There can be no doubt that the Complainant worked as hard for the new Employer as she ever did building up her own company. I do not doubt that the Complainant took some pride in the ongoing success of her enterprise and had a genuine concern that her carefully selected workforce be looked after. As a matter of convenience, the Contract cleaning end of the newly amalgamated entity continued to operate out of the premises it had always operated out of in Dublin 1. In the course of this period of time the Respondent company pressed the Complainant to remain with them. I have no doubt that the Respondent was aware of the benefit of continuity where the Complainant had built up personal and close relationships with many of her clients. The Complainant made no secret of the fact that she was not interested in working full time and at best was prepared to continue to work on a part time basis. Whether the Complainant envisaged that this would be an indefinite arrangement subsequently became an issue of some contention between the parties. I note that the Respondent engaged a Ms. QR in and around Spring of 2015 and it is agreed that QR was intended to take on some aspects of the Complainant’s role so as to allow the Complainant ease back on here working hours. Unfortunately, QR did not stay with the Respondent company for any great length of time and the Complainant found on her return form an extended summer break that she was still needed to work full time. It should be noted that I found the paperwork (emails, letters etc) surrounding and concerning the permanent nature of the Contract of Employment to have been singularly ambiguous. Significantly in the second half of 2015 the Complainant’s Contract Cleaning division was moved into the same premises as the parent Security Company in Dublin 12. The Complainant gave evidence that the atmosphere changed for her at this time. In particular, the Complainant found that the Company was not necessarily being run by the individuals who had negotiated the buy-out of her company. It is common case between the parties that a Mr. S was high up in the Management structure and that Mr. S had previously been an active IRA member and that he had previously been in prison on explosives charges. This was not a secret, though the Complainant only became fully aware of this past when she attended the funeral of the wife of her new boss. The Complainant coming from a background in the Gardai was very surprised at the overt Republicanism on display at that event. The Complainant continued in her full time employment but started to encounter difficulties in relation to how the Security Company operated both in the office and in the field. For example, the Complainant was the object of a tirade of abuse in the office from Mr. S when she challenged the use of an internal CCTV by covering a camera with a piece of paper. This tirade was done in front of staff and the Complainant said she was “shaking” after it. In the field, the Complainant was unhappy that the Security Company was cutting corners to ensure that jobs tendered for, came in under or on budget. The Complainant maintained that the Employer was getting the jobs in the first place because they undercut competitors which meant compromising Health and Safety standards when carrying out the work done. This was anathema to the Complainant who prided herself on putting the welfare of her staff first. In February 2016 the Complainant had challenged one particular practise of allowing ladders to be used in window cleaning which was contrary to good practise. In addition to the foregoing, by December 2015 the company finances were in a bad way with Employees not receiving their Christmas paycheque before the end of the month. The Complainant felt obliged to be the voice for her hardworking and committed staff. Things came to a head for the Complainant and the Respondent when the latter opted to terminate what it proposed to have been a short term interim Contract of engagement and the Employment (terminated by letter dated the 31st of March 2016) would have ended with notice on the 5th of May 2016 (taking into account a full entitlement of Notice for 11 years of service and not just the one year of service with the Security Company). In the course of evidence it became apparent that many issues would fall to be decided by me in the course of this Unfair Dismissals claim and in particular I heard much law in connection with whether there was a lawful series of fixed term Contracts in existence such that the Complainant was not entitled to the protection of the Unfair Dismissal Act simply by reason of the lawful expiration of such a fixed term Contract. I was being asked to interpret correspondence passed between parties wherein it is alleged the true shot term nature of the Contract is immediately apparent. I was asked whether the Complainant was an employee of 11 years standing or 1 years standing. I heard argument in relation to the nature of Unfair Dismissals and the lack of justification for the termination of employment. In fact, there is some doubt as to whether this matter should be treated as a Constructive Dismissal or otherwise. Preliminary Issue It was agreed however, that I needed to decide in relation to a preliminary issue before moving on to deal with the substantive issue. The Preliminary issue :- The Workplace Relations Complaint Form issued on the 23rd day of March 2017. This was nearly ten months outside of the six-month time limit imposed by the 2015 Workplace Relations Act specified at Section 41(6) and (8). To extend that time to twelve months the Complainant must satisfy me the failure to present the complaint within that period was due to reasonable cause. As previously stated It is the Labour Court’s view that in considering if reasonable cause exists, it is for the complainant 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 in 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 a 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. I heard a full day of evidence concerning the Complainant’s delay in bringing her complaints before the Workplace Relations Commission. The Complainant put forward a proposition that she was afraid to proceed with her claim while Mr. S was still in charge of the operation. The Complainant gave as her reasons, her concern that he (Mr.S) was and maybe still is a member of the Republican movement and that Mr. S had a volatile temper likely to cause damage to her and those around her. The Complainant said in evidence that she believed that her faithful colleagues who remained on in the workplace would be victimised if she initiated proceedings against the employer. The Complainant conceded that she was aware of the six-month time limit expressed in the Acts (having engaged a Solicitor) but was only happy to proceed when she heard that Mr. S had left the company in February of 2017. The Respondent by way of response (through witness evidence and submission) rejected all these assertions most vehemently and accuse the Complainant of exaggeration and fantasy. I have to say that I did find it hard to reconcile the Complainant’s statements with the evidence before me. Even if I was to accept that the workplace that the Complainant moved to after the first six months with the Respondent, appeared to use internal CCTV cameras (in an oppressive way) there is no evidence to suggest that Employees conversations were being bugged and still less evidence to suggest that the Complainant was being or should have felt intimidated or threatened by Mr. S and/or any of his purported acquaintances. This proposition just simply did not stack up. The Complainant hardly knew Mr. S and whilst I fully accept that he might have subjected her to a severe dressing down on one occasion I do not reconcile this strong, independent witness with someone cowering with fear. It was not coherent or credible or rational belief and on balance I have to find that the complainant has not been able to show reasonable cause. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I am therefore not satisfied that the failure to present the complaint within the period was as a result of reasonable cause. I decline to extend the time limit and therefore do not have the jurisdiction to hear this matter and reach decisions with respect to the various substantive issues outlined above.
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Dated: 25th July 2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words: