Complainant

Respondent

Anonymised Parties

An Estate Manager

An energy company

Representatives

Derek Dunne BL instructed by Neil Breheny, Neil J. Breheny & Co. Solicitors

Ann-Marie Burke, Ibec.

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-00017427-001

13/02/2018

The Complainant has been engaged by the Respondent since 1996/1997. The Complainant’s role involved the development of wind farms in Ireland. The Complainant would identify suitable sites for the development of wind farms, source the site, erect wind monitoring equipment and collect data every 28 days. He would also engage with landowners and negotiate with them to reach agreement for the development of wind farms.

The Complainant alleges that he was dismissed from employment on 19/04/2017.

The Complainant claims to have been earning €8,400 net pay per month.

The Complainant submitted his complaint to the Workplace Relations Commission on 13th February 2018.

Respondent Preliminary Issue.

The Company strongly argues that the Adjudicator does not have jurisdiction to hear the complaint. The Complainant alleges that his employment was terminated effective 19th April 2017. The Complainant waited until 23rd February 2018 (more than 10 months) to submit his claim to the Workplace Relations Commission, which is clearly outside the timeframes of the Acts.

Section 8(2) of the Unfair Dismissals Acts, 1997 to 2007 states:

“A claim for redress under the Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be –

(a)    Within the period of 6 months beginning on the date of the relevant dismissal”.

Section 8 (2)(b) of the Acts has been repealed by Section 41(8) of the Workplace Relations Act 2015. However, S.41(8) of the Workplace Relations Act 2015 still provides that this 6-month time limit should apply and that it can only be extended due to ‘reasonable cause’.

The claimant had months in which to submit his complaint in time and clearly, he did not do so. In fact, the Respondent is aware that the Complainant had access to expert legal advice prior to his email of April 19,2017 which specifically advised him of the six-month time-frame.

In his WRC complaint form the Complainant says he should be given the benefit of the additional 6 – month time frame under the grounds “reasonable cause”. He has falsely claimed that “[he] was not aware that there was only six months to make the complaint….” The Respondent would strongly submit that the Complainant has not discharged a satisfactory case for this deadline to be extended. The Respondent’s arguments in this regard rely on case law and precedents set down by both the civil and employment Courts as follows:

Cementation Skanska Ltd v Tom Carroll DWT 0338.

The Labour Court provided its view of the standard that should be applied in applications for time extensions under the ground of “reasonable cause”

“It is noted that the standard required by this subsection is that of ‘reasonable cause’. This may be contrasted with the much higher standard of ‘exceptional circumstances preventing the making of the claim’ which is provided for in other employment related statutes. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case.

It is the Courts 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 complainant 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. Here 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 line with the Labour Court’s view in the Cementation Skanska case referred to above; the claimant must produce ‘cogent reasons’ for waiting almost a year to bring a claim. To date he has not explained why he would ignore his solicitor, who clearly stated in writing, that there is six months to bring a claim.

The Respondent has made a very strong legal argument in relation to the complaint being out of time.

I fully accept this argument and find that reasonable cause has not been shown to extend the time limit - I therefore do not have jurisdiction to hear the complaint.

The complaint was not made within the specified time limit and therefore fails.