UDD1841

Background

The Appellant operates a creche. The Complainant had, since 2008, worked in a creche that was taken over by the Appellant in 2012. She had worked for the Appellant on good terms since that date.

The Complainant suffered from a disability that adversely impacted mobility. However she continued at work without adverse consequence. On 20 July 2016 an exchange took place between the Complainant and the Appellant that resulted in the alleged termination of her employment. The Appellant denies dismissing the Complainant.

Statutory Time Limit

The Complainant engaged in correspondence with the Workplace Relations Commission commencing on 16 January 2016. The Complainant maintains that this amounts to a complaint within the meaning of the Unfair Dismissals Act 1977 – 2015. The Respondent maintains that no complaint within the meaning of the Act was filed within the statutory time limit. The Respondent submits that the complaint was not filed with the Workplace Relations Commission until 29 July 2016 more than 12 months after the date of the impugned alleged dismissal.

The Court invited both sides to make submissions on this preliminary point.

The Complainant submits that she wrote to the Workplace Relations Commission on 18 January 2016 in the following terms

“ Please find enclosed my file of correspondence between myself and my previous employer. I have made numerous attempts to find a resolution to my termination of employment, which I believe was illegal and motivated by my disability. I suffer from “Limb Gridle Muscular Dystrophy”, of which my ex employer was at all material times aware. I had been in the employ of “On Cloud Nine Creche” for more than seven years. My disability did not impact unduly on my work and I have never received complaints or concerns by either the clients or the management prior to my dismissal.

I have made numerous attempts to obtain documentation such as my disciplinary record, original manifestations of contracts etc, but to no avail.

I hope your office is in a position to assist me in the above regard. I may be contacted at the above address or by email ………… I look forward to hearing from you in due course.”

The Workplace Relations Commission replied to that letter by way of correspondence dated 2 February 2016. In relevant part it states

“if an employee has 12 months continuous service with his/her employer and is of the opinion that he/she has been unfairly dismissed by the employer, the employee may refer a complaint to the Workplace Relations Commission under the Unfair Dismissals Acts. The relevant complaint forms are available on-line atwww.workplacerelations.ieor on request from this office.”

It goes on to state“I trust this will be of assistance. Please read the attached information and if your query has not been answered you may find the information you need on our website at www.workplacerelations .ie. If your query is of a more specific nature then you may find it useful to contact us directly on our information line lo-call service on ……….”

The Complainant told the Court that she neither downloaded the complaint form from the website nor otherwise requested them from the WRC.

However, she did telephone the WRC on 16 February 2016. As a result of the telephone call she again wrote to the WRC on 30 May 2016 in the following terms

“As per our conversation of the 16^thFebruary last please now find enclosed my file of correspondence between myself and my previous employer. This file was sent to you originally many months ago and well within the statutory time frame, but your agent informed me by phone that the file was mislaid.

I should say that I have made numerous attempts to find a resolution to my termination of employment, which I believe was illegal and motivated by my disability. I suffer from “Limb Girdle Muscular Dystrophy” of which my ex employer was at all material times aware. I had been in the employ of “On Cloud Nine Creche” for more than seven years. My disability did not impact unduly on my work and I have never received complaints or concerns by either the clients or the management prior to my dismissal.

I have made numerous attempts to obtain documentation such as my disciplinary record, original manifestations of my contracts etc, but to no avail. While the pro-forma documentation was not available on your website, at the time of the event, the correspondence will attest to the fact that I have complied with all of the obligations that the legislation demands.

I hope your office is in a position to assist me in the above regard. I may be contacted at the above address of by email at……… I look forward to hearing from you in due course.”

On 27 July 2016 Nooney Dowdall Solicitors wrote on her behalf to the WRC in the following terms

“We have been consulted today by Ms Sharon Dunleavy of the above address wo advises that she made a complaint to the Workplace Relations Committee on the 16th of January 2016. She received a reply from the WRC on the 2^ndof February, 2016, a copy of which is enclosed. As far as she was concerned, she had done all that needed to be done and she followed up some months later by telephoning the WRC who could not find an appropriate number and as such she wrote again to yourselves, by registered post on the 30^thMay, 2016, a copy of the covering letter is also enclosed.

We have asked our client as to whether she completed an actual complaint form and she said that she tried to download it from the website but couldn’t do so and as such sent the copy documentation instead.

We have advised her that she must fill out a complaint form and we are doing so presently and shall forward same to you immediately.

You can appreciate that we are concerned in relation to the time lost and the time limits in respect of submitting a claim.

We would be obliged if you could please confirm that you did in fact receive the documentation as sent by our client firstly on the 16^thJanuary, 2016 and secondly on the 30^thMay 2016, as an application may be made by the Respondent when the complaint is made that the appropriate time for bringing a claim has expired.

Your reply by return would be gratefully appreciated.”

The complaint form duly signed was submitted under cover of a letter dated 29 July 2016 and received on 2 August 2016.

The WRC replied to Nooney Dowdall on 2 August 2016 in the following terms

“I refer to your letter dated 27^thJuly 2016 in relation to the above and wish to advise that there is no record of the Workplace Relations Commission receiving a Complaint form from the abovenamed person.

In response to documents received from your Client in January 2016 a letter issued from the Workplace Relations Commission dated 2^ndFebruary, 2016. Information was provided to Ms Dunleavy in relation to unfair dismissals and submitting a complaint to the Workplace Relations Commission. Further documents were received on the 8^thJune 2016. At your request the documents may be associated with any complaint submitted at a further date.

I understand you will submit a complaint in respect of your client. The on-line form available onwww.workplacerelations.iecan by sued to submit the complaint.

Your correspondence makes reference to time limits in relation to complaints submitted. Please note that the administrative section of the WRC do not take any decision in relation to time limits. The provisions governing the time limits pertaining to complaints are matters for the adjudication officer to consider under the various section of the Act/s and decide accordingly. Any time issue will however be brought to your attention at the point of submission.”

Complainant’s Evidence

The Complainant gave evidence to the Court. In her evidence she stated that after she was dismissed she approached the Citizens Information Service but did not find their information or advice helpful. She was then referred by a colleague to a person who was helping her pursue a grievance against the Respondent in this case. She consulted that person and arising out of their interaction she sent the documents to the WRC on 16 January 2016. She said that she received a response from the WRC dated 2 February as set out above. She told the Court that she did not attempt to download the relevant complaint form or contact the office for a copy. She said she accepts that she should have done so. However, she stated that at that time she was pregnant and was suffering complications associated therewith.

She said that she subsequently phoned the WRC to enquire about the letter she sent on the 16 January 2016. She said that the WRC advised her that it had no record number associated with her. As a consequence, she resubmitted the documents under cover of a letter dated 30 May 2016.

She states that she had no further contact with the WRC until she approached Nooney Dowdall Solicitors in July at which point she completed a Complaint Form and filed it with the WRC.

In answer to questions she stated that she did not act on the letter she received on 2 February 2016. She also stated that she did not download a Complaint Form or otherwise seek a copy as she had difficulty downloading one in January 2016. She stated that she took no further action until she telephoned the WRC on 16 February 2016. She stated that she did not assert in that phone call that the documents she submitted in January 2016 were intended to commence a complaint under the Act.

She further stated that she wrote to the WRC on 20 May 2016 in the terms outlined above, however, she did not offer any explanation as to the meaning given to the contents of that letter.

She finally stated that she thought that she had done enough by writing to the WRC in the manner in which she did in January 2016.

The Law

Section 41(6) of the Workplace Relations Act 2015 states

(6) Subject tosubsection (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.

Subsection (8) provides for an extension of time beyond the 6 months’ time limit in certain circumstances. However, the Complainant has not sought an extension of time in this case and consequently this section has no relevance to the instant case.

Findings of the Court

Section 41(6) prohibits an adjudication officer from entertaining a complaint referred to him or her if it has been presented after the expiration of 6 months beginning on the date of contravention to which the complaint relates.

In this case the alleged contravention of the Act occurred on 20 July 2015. Accordingly the last date on which a complaint could be submitted to the Workplace Relations Commission was 19 January 2016.

On 16 January 2016 the Complainant wrote a letter to the WRC enclosing documents related to the termination of her employment with the Respondent/Appellant. She subsequently maintained that this constitute a complaint within the meaning of the Act.

The Court finds no merit in this contention. An examination of the letter of the 16^thJanuary on which the Complainant relies, contains no reference to a complaint under this or any other Act. It makes reference to a file of correspondence, goes on to refer to the termination of her employment that she believes was “illegal” and “motivated by my (her) disability”, states that the disability did not impede her work, seeks copies of documentation related to her employment and finishes by asking whether the WRC can assist her in the above regard.

At no point does she make reference to initiating a complaint under the Act.

Moreover when the WRC responded to the letter indicating how she could initiate a complaint under the Unfair Dismissals Act she did not take either of the steps outlined in that letter. She did not download the form or seek a copy of it from the WRC. Furthermore, she did not at that point advise the WRC that she believed she had commenced a complaint by submitting the letter of the 16th January. Moreover when she telephoned the WRC on the 16^thFebruary and in evidence told the Court that she did not advise the WRC during that call that she considered the letter of the 16 to have initiated a complaint under the Act.

When the Complainant wrote to the WRC on May 30^thwhich was received on 8 June, she states

“As per our conversation of the 16^thFebruary last please now find enclosed my file of correspondence between myself and my previous employer. This file was sent to you originally many months ago and well within the statutory time frame, but your agent informed me by phone that the file was mislaid.

The reference to the statutory time frame above is the first reference to a statutory time limit and the first exchange that can in any way be considered a reference to commencing something within a statutory time limit. Yet even that reference is obscure. No Act is referred to, no complaint is itemised and no legislation is identified. It contains no assertion that such a contention was previously made to the WRC in the course of any of the previous exchanges with her. It is at best a poor attempt to overcome the failure to initiate a complaint in any of the earlier exchanges.

The Court does not stand on ceremony in determining what constitutes a complaint under the Act. What it has required is that the written complaint on which a complainant relies makes reference to both a complaint and a relevant Act. In this case neither is referenced in the letter of 16 January 2016 and accordingly cannot be elevated by this Court to the status of a complaint within the meaning of the Unfair Dismissals Act as amended by section 41(6) of the Workplace Relations Act 2015.

Determination

The Court determines that the complaint is statute barred, sets aside the decision of the Adjudication Officer and allows the appeal.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
MK______________________
10 July 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.