Complainant

Respondent

Anonymised Parties

Warehouse Employee

Distributor

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-00018409-001

05/04/2018

The Complainant has submitted a complaint of constructive unfair dismissal against the Respondent.

The Respondent rejects the complaint.

The Respondent submits that the Complainant’s employment with the Respondent ceased on 5th October 2017 and that the herein complaint was received by the WRC on 5th April 2018.

The Respondent submits that, in accordance with the time limits set out the in the Workplace Relations Act 2015 and the interpretation of time periods contained in the Interpretation Act 2005, the complaint is out of time.

The Complainant’s representative contends that by submitting the complaint on 5th April 2018, the complaint was submitted on time.

The Complainant’s representative further submits that any delay in submitting the complaint was due to the fact that he (the representative) was in hospital from 24th February 2108 to 12th April 2018.

The first matter I must decide is if I have jurisdiction to hear this complaint.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

“Subject to subsection (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.”

I note that the Complainant’s employment with the Respondent terminated on 5th October 2017. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted within 6 months of the 5th of October 2017.

I note that the Complainant’s representative’s contention that six months from 5th October 2017 ends on 5th April 2018.

Section 18(h) of the Interpretation Act 2005, which deals with the interpretation of periods of time which are set down in legislation, provides that:

“Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;”

In the High Court case Bank of Scotland (Ireland) LTD v Employment Appeals Tribunal [2003] 8 ICLMD 33, Ó Caoimh J, helpfully explained that, in accordance with Section 11 of the Interpretation Act 1937 (replaced by Section 18(h) of the Interpretation Act 2005), a period of six months beginning on the 31st July 2000 had expired on 30th January 2001.  

I fully accept that the Complainant’s representative was assisting the Complainant in a personal capacity. I also accept that, whilst the Complainant’s representative is a professional person, his professional expertise is not in the area of employment law.

I believe that Complainant’s representative acted in good faith when calculating that the six month period for the purpose of submitting the herein complaint expired on 5 April 2018.    

However, in light of the High Court decision above, I find that a period of six months commencing on 5th October 2017 expires on 4th April 2018.

I recognise that the Complainant’s representative was not aware of the provisions of the Interpretation Act 2005 regarding the calculation of time periods in legislation.

However, as the Labour Court found in Globe Technical Services Limited and Kristin Miller (UD/17/177), ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form:

“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.”

Taking all of the above into account, I find that the herein complaint has been lodged outside the time limits prescribed by Section 41(6) of the Workplace Relations Act 2015.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“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 Complainant’s representative submits that the delay in submitting the complaint was due to his hospitalisation from 24th February 2018 to 12th April 2018.

I note, however, that the herein complainant was submitted to the WRC on 5th April 2018 which was during the Complainant’s representative’s hospitalisation.

I find, therefore, that there was no causal link between the hospitalisation of the Complainant’s representative and the delay in submitting the initiating complaint referral form.

Accordingly, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for submission of a claim for redress under the Unfair Dismissal Act.

Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint.

Having carefully considered all evidence available to me, I find that the Complainant has failed to submit his complaint within the required time limit.

I find that I do not have the jurisdiction to hear this case.

Time limit – no jurisdiction – Interpretation Act 2005