Complainant

Respondent

Anonymised Parties

A Software Engineer

A Technology Company

Representatives

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-00017165-001

30/01/2018

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

CA-00017165-005

30/01/2018

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

CA-00017165-006

30/01/2018

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

CA-00017165-007

30/01/2018

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

CA-00017165-008

30/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00017165-009

30/01/2018

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

CA-00017165-010

30/01/2018

The complainant had been a founder member of the company and resigned on February 28th 2017.

There is a preliminary matter related to whether the complaints have been received within the statutory time limits.

All the above complaints were submitted on January 30th 2018 which is outside the six month limit but within the extended period of twelve months.

A preliminary issue arises therefore as to whether the time limits may be extended.

The complainant attributes his failure to submit the complaints within the six month period to his health problems.

He attributes these to the difficulties he was having with the respondent and the fall out from his termination of employment.

In support of this he submitted medical certification dated March 15th, 2018 the relevant part of which is as follows.

‘This is to certify that [the complainant] has been suffering from stress and anxiety affecting his health, since January 2017.

The source of the problem is work-related stress.

This has rendered him unable to engage in the processes required to take an action with the WRC.

I would appreciate your giving consideration to this and extending the period within which he can make a submission’

He was living on social welfare for ten months and making a complaint to the WRC was the furthest thing from his mind.

The respondent disputes the complainant’s contention that his state of health prevented him from submitting the complaint in time.

He had been engaging in correspondence and meetings with the respondent and had been briefing his solicitor in relation to various matters within the period when he now says he was unfit to make a submission to the WRC.

There is no question but that he was sufficiently competent to submit a complaint to the WRC if he was able to undertake that engagement.

The respondent also believes that he was undertaking work through his private company throughout the period.

In relation to the test applied in extension of time applications under the Acts, the most commonly cited dicta are those of the Labour Court in Department of Finance v IMPACT. [2005] E.L.R. 6.

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

This is also reflected in similar terms in a Labour Court Decision; Cementation Skanska v Carroll WTC/ 03/2 Determination Number DWT 0338 31 October 2003.

In summary, the explanation must both explain and excuse the delay.

The complainant was far from convincing on this point.

Bear in mind, the only matter under discussion is the delay in the submission of the complaint.

The respondent’s evidence showed clearly that the complainant was engaging with it at a level which appeared to be, if anything more demanding than what would be required for the making of a complaint to the WRC. The complainant did not dispute this engagement.

The medical certification is vague and unconvincing. It refers to the complainant being ‘unable to engage in the processes required to take an action with the WRC’.

It is not clear whether the medical practitioner in question was referring to the making of a complaint, or preparing for and attending a hearing, or whether he was aware of the difference.

While it is hazardous for a lay person to in any way challenge a medical certificate, this particular certificate covered a period from March 2018 back to January 2017 and as written, is too vague and imprecise to provide a reliable basis for reaching a conclusion about the fitness of the complainant to fill out a complaint form at any time between the termination of his employment at the end of February 2017 and before the expiry of the six-month limit for doing so.

In addition, the complaint was in fact submitted to the WRC in the period covered by the medical certificate.

I would have welcomed the opportunity to hear further from the medical practitioner but he did not attend the hearing.

The complainant was given the opportunity to submit further medical certification but did not do so.

Accordingly, having considered both the respondent’s and the complainant’s evidence I find that the complainant has not met the criteria set out above to extend the period within which his complaint may be considered.

He has not advanced any credible reason why he did not make the complaints within the six month statutory time limits.

Accordingly, they have not been made within the statutory time limits and no reasonable cause has been advanced for the failure to do so and they fail.

For the reasons set out above I do not uphold complaints CA-00017165-001, 005, 006, 007, 008, 009 and 010 as they were not submitted within the statutory time limits and they are dismissed.

Time limits.