Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Newsagent

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015906-001

20/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00015906-002

20/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00015906-003

20/11/2017

The issue concerns the alleged Unfair Dismissal of a Retail Worker by a Newsagent.

1:1       CA-00015906-003 Unfair Dismissal Act Complaint.

The Complainant had commenced employment in October 2006. In September 2015 there had been a dispute with the Respondent regarding Hours of Work. In October 2015 she went on Illness Benefit and did not return to work with the Respondent. The Complainant and a colleague were party to Adjudication Proceedings in October 2016 resulting in Adjudication Decisions Adj -00000873 and Adj-00000867 which issued in November 2016. In February 2017 the Complainant received a large envelope from the Respondent which included her P45 with a termination date of 17 February 2017.

There was no warning given and no employment procedures were followed. The Dismissal came totally out of the blue and was accordingly completely Unfair.

2:2           CA-00015906-002 Minimum Notice complaint

The Complainant did not receive her due Minimum notice.

2:3         CA-00015906-001       Holiday Pay complaint.

The Complainant did not receive her statutory Holiday Pay entitlement for the period from October 2015 to February 2017.

The Respondent pointed out that all three Complaints listed above had been presented to the Workplace Relations Commission on the 20th November 2017. The alleged dismissal date being the 17th of February 2017.

Referencing Section 8 (2) of the Unfair Dismissals Act,1977 and Section 41 (6) of the Workplace Relations Act,2015 the Complaints are clearly out of time and as such the Adjudication Officer has no proper jurisdiction to proceed with the Case.

Regarding the “Reasonable Cause” grounds for an Extension to 12 months as provided for in Section 41(8) of the Workplace Relations Act,2015 no valid case or supporting evidence had been produced by the Complainants to justify the Adjudication Officer granting such an extension.

Without prejudice to the above Argument the Respondent strongly refuted the Claim. The Complainants had stated at the Adjudication hearing in October 2016 (Adj -873 and Adj 876) that they did not wish to return to the Respondents employment. Little contact had been made with the Respondent since October 2015 and the statements at the Hearing in October 2016 had confirmed the Respondent’s belief that the Complainants did not wish to return to work.

3:1       Time Limits and Jurisdiction of Adjudication Officer.

Cases , CA-00015906-003 Unfair Dismissal Act, CA-00015906-002 Minimum Notice complaint and -CA- 00015906-001 Holiday Pay complaint.,

Accepting the provisions of Clause 8 (2) of the Unfair Dismissals Act,1977 and Clause 41(6) of the Workplace Relations Act, 2015 the claims were lodged outside of the required six months’ time limit.

The question that then arises is whether or not “Reasonable cause” exist to consider an extension to a twelve-month limit. The possibility of such an extension is provided for in Sections 8(2-b) of the Unfair Dismissals Act,1977 and Section 41(8) of the Workplace Relations Act,2015.

Workplace Relations Act,2015 Section 41(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.

In the current case the six months limit expired on or about the 17th August 2017. The claim and its closely associated claim (Adj 11961) were not lodged at the WRC until November 20th, 2017, some three months later.

The question of “Reasonable Cause” for an extension of time is discussed at Section 25.20 in Redmond on Dismissal Law - 3rd edition - Desmond Ryan -Bloomsbury 2017.

The quoted writer asks that the question, in considering Reasonable cause, what advice the Complainant was receiving be considered carefully. It is one of a number of questions.

“Was he or she being advised at the material time? If so, by whom and what was the nature and quality of the advice?

In the case in hand the Complainants were being advised in late March/early April 2017 by the Citizens Advice Service. A comprehensive and legally detailed three-page letter on the Complainant’s behalf was issued by the Citizens Advice Service to the Respondent on the 5th April 2017. It is a clear and well written statement of the facts of the case at that stage.

Furthermore, the letter sets out the exact and correct Legal position with a reference to the possibility of lodging a WRC claim under the Unfair Dismissals Act ,1977. The letter states at the top of Page Two

“A and B (the Complainants) are considering their position (regarding a UD Act claim) and will advise of their decision in due course.”

The claim would have gone out of time some four months later and it is inconceivable that the author of the Citizens Advice letter referred to would not have mentioned this time limit issue to the Complainants.

Even allowing for the fact that the Complainants changed Representation some time later it was hard to see how the basic time limit was missed.

The Complainants were at this stage familiar with WRC processes having successfully brought proceedings in October 2016 resulting in an award in their favour under Adj 873 and Adj 867. They were also, in late 2017, progressing other Adjudication claims -Adj 9738 and Adj 9734. They were not beginners at WRC processes.

The illness of the Complainant in this case (Adj 11994) while medically certified was not such as to prevent the Complainant indicating to the Citizens Advice Service or to her new Representative that a claim should be immediately lodged even in a “Holding Capacity.”

In particular the Complainant was clearly acting in concert, in all proceedings, with the Complainant in Adj -00011961 who was also not suffering from any illness of such severity that it might have prevented her lodging a UD complaint, even in a “holding” capacity and encouraging her colleague to do likewise.

In the case of Minister for Finance v Civil and Public Service Union [2007] ELR 36 Mr. Justice Laffoy stated

“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 statue it suggests an objective standard but it must be applied to the facts and circumstances know to the claimant at the material time”.

Quoted at Page 579 in Ryan above

In the case in hand a delay of some three months arose after the expiry of the first six months and I failed to see how a “reasonable” explanation for this delay could be sustained. No evidence of a compelling nature was presented to support the request for an extension.

Accordingly, I must rule that he claims are out of time and I have no jurisdiction to proceed further.

Act

Complaint/Dispute Reference No.

Summary Decision/ Please refer to Section 3 above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015906-001

Claim is out of time and is dismissed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00015906-002

Claim is out of time and is dismissed.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00015906-003

Claim is out of time and is dismissed.