UDD1824

This matter comes before the Court as an appeal by Kristin Miller (the Appellant) of a decision of an Adjudication Officer in her complaint of unfair dismissal under the Unfair Dismissals Act 1977 (the Act) against her former employer, Globe Technical Services Limited (the Respondent). The Appellant’s employment with the Respondent terminated on 3June 2016.

The Appellant’s complaint was received by the Workplace Relations Commission on 5^thMay 2017. Having regard to the Act at Section 8(2)(a), the six-month time limit within which the complaint under that Act should have been referred to the Workplace Relations Commission expired on 2^ndDecember 2016.

The Adjudication Officer, while noting that submissions had been made as regards an extension of time, decided that the within complaint fell for want of prosecution.

The Case

The Respondent raised a preliminary point as regards the time limits set out in the Act for the making of a complaint. The Respondent made a submission setting out that no submission or application had been made by the Appellant to the Court for the extension of time for the making of a complaint and consequently the complaint of the Appellant to the Workplace Relations Commission was out of time and must fail.

The Appellant made no written submission on this matter in advance of the hearing of the Court. The Appellant submitted orally at the hearing of the Court that she had left Ireland shortly after her dismissal. She submitted that she came from an American background and was unaware of the jurisdiction of the Workplace Relations Commission. She submitted that she was not in a position to research the matter until she had become established in the jurisdiction to which she had moved following her dismissal. She contacted a solicitor in April 2017 and her complaint was made shortly thereafter. She submitted that the delay in making her complaint was for reasonable cause.

Discussion and Conclusions

The Act provides at Section 8(2) as follows:

• (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

In the within matter no complaint was made to the Workplace Relations Commission within the time period set out in the Act at Section 8(2)(a). The Court must therefore consider the submissions of the parties, including the oral submission of the Appellant made at the hearing.

The meaning of “reasonable cause” as used in the Act at Section 8(2) has previously been the subject of consideration by this Court. The Court inSalesforce.com v Alli LeechEDA1615stated:

• “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -
  • ‘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.’
  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 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 test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

  • - The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.
  It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

In the experience of the Court it is not uncommon for parties no longer resident in the state to initiate and pursue complaints under the body of employment law applying in this jurisdiction. The Court finds that the fact of the Appellant being resident outside this State is not a circumstance which would, of itself, explain the delay in making a complaint or justify that delay.

It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.

InMinister for Finance v Civil and Public Services Union and Others[2007] 18 ELR 36,Laffoy J held that

• “…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.” .

On the basis of the jurisprudence set out above and the facts of the case as presented the Court does not accept the submission of the Appellant and finds that she has not demonstrated reasonable cause for the delay in making of her complaint.

Determination

On the basis of the foregoing the Court determines that the Appellant has not established that there was reasonable cause justifying her delay of some 11 months in referring her complaint to the Workplace Relations Commission. The decision of the Adjudication Officer is varied and the appeal fails.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
17 May 2018Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.