ADJ-00016867

Complainant

Respondent

Anonymised Parties

An office worker

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00021944-001

10/07/2018

The complainant referred his complaint on 10 July 2017. On 10 September 2018, the Director General delegated the case to me for investigation and decision. I held a joint hearing with the parties on 10 October 2018.

The complainant was hired on a fixed-term contract as a clerical officer. This fixed term contract ended on 16 December 2016, and the complainant was made a permanent employee on 17 December 2016. As regards his substantive complaint, he stated the in terms of the actual work he did in his position, and the responsibilities attached to it, he should have received an acting-up allowance for the grade of executive officer, and that his manager had made representations to him that he would try and obtain same for him. However, his manager told him a couple of weeks later that the application had been refused.

As regards the delay in filing the complaint, the complainant pointed out that he first tried to resolve the matter internally, and also that his union representative told him the delay would not be detrimental to him.

It is the respondent’s case that the complaint has been brought outside the time limits set down in the Workplace Relations Act, 2015, given that the complainant’s status as a fixed-term worker ended on 18 December 2016 (according to the respondent’s records), but the complainant only brought the complaint nearly 18 months later, in July 2018.

Section 41(6) of the Workplace Relations Acts states that:

(6) 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.

[Emphasis added]

Section 41(8) states that

(8) 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.

[Emphasis added]

There is no dispute that the filing date of the within complaint exceeds the 12-month time limit set down in these sections by nearly another seven months.

I would be prepared to accept the complainant’s explanations as reasonable cause pursuant to S. 41(8), but the statute shows clearly that I have no powers to extend the time limit to more than 12 months in total. To do so would mean I would act in excess of the powers given to me, or ultra vires as the technical legal term goes.

I must therefore find that the complaint has been brought outside of the statutory time limit and that I have no jurisdiction to investigate it.   The information which the complainant had received from his union in this regard – and I wish to note that the union came off the record the evening before the hearing – appears to have been in error.

I find that the above complaint was brought outside of the time limits set down in S. 41 of the Workplace Relations Acts and that I have therefore no jurisdiction to investigate it.

Time limits – exceeding 12 months limit – S. 41(6) and S. 41(8) of Workplace Relations Act.