Complainant

Respondent

Anonymised Parties

A Cabin Crew Member

An Airline

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-00008023-001

07/11/2016

The respondent is an Irish airline and the complainant commenced employment as a member of the cabin crew on April 16th 2004. He is an Italian national and was based at an airport in Italy. On July 10th 2015, following a landing, one of his colleagues asked him to explain why he was carrying out an end-of-flight procedure in a particular way. This resulted in an argument and six of the cabin crew made complaints about how he reacted. He himself made a complaint of bullying by one of his colleagues. The complainant went absent the following day due to anxiety and did not return to work. He was dismissed on April 4th 2016, following nine months of absence and an indication by him that he would be not be back at work for at least a further six months. He complains that his dismissal is unfair.

A letter was submitted in evidence by the respondent, sent to them by the complainant’s solicitor on January 20th 2017. The letter describes the nature of the complainant’s illness and states that because of his incapacity, he “won’t be able any more to fly on board of an aircraft.” At the hearing, the complainant did not contradict this statement. It is evident that, due to his illness, he will not be able to carry out the job of cabin crew, at least for the foreseeable future. He has not taken up employment since his dismissal and he said that he was on heavy medication and very sick.

Jurisdiction – the Complaint has been Submitted Outside the Time Limit

This complaint was submitted to the WRC on November 7th 2016, seven months after the complainant was dismissed. Section 8(2) of the Unfair Dismissals Act (amended) provides that a claim for redress must be initiated within six months of the date of dismissal, or within 12 months, if the adjudication officer is satisfied that there was reasonable cause for the delay.

For the respondent, Counsel submitted that I have no jurisdiction to hear this complaint, as it was submitted outside the six-month time limit provided for in the Unfair Dismissals Act and no reasonable cause has been put forward to explain the delay. Counsel pointed to the fact that the complainant had the benefit of legal advice even before he was dismissed as he engaged a solicitor in January 2016, when he was requested to attend a meeting to discuss his absence. In response to a letter on January 27th 2016, inviting him to this meeting, the complainant wrote, “Inform the management that I will not come to the meeting without my lawyer.” When he said he could not travel by aeroplane to Dublin for a meeting, it was re-scheduled for an airport in Italy on February 24th. On February 18th, he wrote to the HR Department stating, “…please pass the message to management that my lawyer will be able to come with me.”  

I note from the documents submitted by the complainant that, in or around April 2016, he submitted a claim to the Personal Injuries Assessment Board in Ireland, in respect of an injury he sustained at an airport in 2014. The documents submitted by the complainant also show that from May 2016, he engaged in with the Department of Social Protection in Dublin, with regard to a claim for Occupational Injury Benefit due to stress, anxiety and depression.

Between November 2016, when he submitted this complaint, and the date of the hearing in June 2018, the complainant submitted more than 200 documents to the WRC, some of which are copies of correspondence from him to government ministers in the weeks after his dismissal. It is evident that he is capable of research into his rights and his legal entitlements and he is experienced at communicating with state bodies.

It is evident also that the complainant had the benefit of legal advice prior to the termination of his employment in April 2016 and right up to January 2017, when his solicitor wrote to the respondent to say that he would not be able to fly on an aircraft again. When he was asked at the hearing why he did not submit his complaint on time, he said that he “was guided by lawyers who were misinformed.”

Conclusion on the Issue of the Time Limit for Submitting a Complaint

The established test for deciding if an extension of time should be granted is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338.   In this case, the test for reasonable cause for extending the time limit to 12 months was set out 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.”

For an explanation of “reasonable cause” to succeed therefore, the complainant must

§    Explain the delay and afford an excuse for the delay;

§    The explanation must be reasonable;

§    There must be an objective standard, applied to the circumstances of the case;

§    There must be a causal link between the circumstances and the delay;

§    He must show that, if the circumstances were not present, he would have submitted the claim.

Having considered this matter, I find that the complainant sought the advice of a solicitor in February 2016, and that he had the benefit of legal advice at the time of his dismissal and afterwards. He submitted no evidence with regard to his claim that his lawyers were “misinformed” and I am not convinced of the veracity of this statement. I also find that the complainant was personally capable of dealing with separate claims to the Personal Injuries Assessment Board and the Department of Social Protection in the weeks shortly after the termination of his employment and he presented no reasonable cause to explain why he did not submit a complaint to the WRC at the same time.

I find therefore that no reasonable cause has been presented to persuade me to grant an extension of time in this case.

Having concluded that there was no reasonable cause for the complainant submitting his complaint outside the legal time limit, I decide that I have no jurisdiction to adjudicate on this complaint.