Complainant

Respondent

Anonymised Parties

Counsellor

Employer

Representatives

Andrew Sheeran Sheeran & Co. Solicitors

David O'Riordan Sherwin O'Riordan Solicitors

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-00017963-001

23/02/2018

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act,1977 (CA-00017963-001)

Preliminary Submission

On the 24th August 2018, when this matter was first listed for hearing, the Respondent Company made a preliminary submission that this matter was statute barred as the Complainants employment ceased on the 22nd November 2016 and receipt of this Complaint was acknowledged by the the   Workplace Relations Commission on the 23rd February 2018.

It was submitted that this complaint was submitted to the Workplace Relations Commission outside of the six month statutory deadline.

The Legal Representative of the Complainant stated the Complaint had been lodged under the cover of letter dated the 16th February 2017. Accordingly, this matter was adjourned to allow the Complainant to provide the appropriate correspondence.

Following the preliminary submission by the Respondent Company, the Legal Representative stated that this complaint had been lodged under cover of letter dated the 16th November 2017, within the appropriate statutory time limit.

Following the adjournment of this matter on the 24th August 2018, the Legal Representative of the Complainant provided a Declaration sworn before a Commissioner for Oaths dated the 4th September 2018.

The Legal Representative declared at paragraph 3 that he had sent the WRC Complaint Form dated the 16th February 2017 by ordinary post on the 16th February 2017 and attached a copy of said letter.

The Legal Representative declared at paragraph 4 that as of the date of this Declaration the said complaint form had not been returned as undelivered.

The Legal Representative declared at paragraph 5, that some months following a review of the Complainants file he realised he had not received acknowledgement of the Complainants WRC form and he wrote to the WRC on the 12th December 2017 requesting acknowledgement and assignment of a claim number and attached a copy of said letter.

The Legal Representative declared at paragraph 6 that he received no reply to his letter of the 12th December 2017 and followed up by way of letter reminder dated the 30th January 2018 and attached a copy of said letter.

The Legal Representative declared at paragraph 7 that he received a letter form the WRC dated the 13th February 2018 confirming that no application had been received by them in relation to this matter.

The Legal Representative declared at paragraph 8 that he submitted a copy of the original complaint form dated the 16th February 2017 by registered post under cover of letter dated the 22nd February 2018 and attached a copy of said letter.

The Legal Representative declared at paragraph 9 that the WRC acknowledged receipt of this application by letter dated the 5th April 2018. Notice of this application was served on the Respondent Company.

The Legal Representative declared at paragraph 10 that no correspondence was received by his offices objecting to the admission of the complaint to the WRC by the Respondent Company or its legal representatives and reliance on the statute of limitations by them was likewise never raised in correspondence or otherwise. It was further declared that if the   Respondent Company wished to rely on the statute of limitations this issue should have been raised by them at the earliest possible opportunity either with the WRC or with the Legal Representative of the Complainant prior to the initial hearing of the 24th August 2018 and therefore the Respondent Company should not be entitled to rely on the statute.

On the 25th January 2019, the Legal Representative of the Complainant did not rely on any further submissions.

On the 24th August 2018, the Respondent Company made a preliminary submission that this matter was statute barred as the Complainants employment ceased on the 22nd November 2016 and receipt of this Complaint was acknowledged by the   Workplace Relations Commission on the 23rd February 2018. Accordingly, it was submitted that this complaint was submitted outside of the six month statutory deadline.

On the 25th January 2019, the Respondent Company remade their preliminary submission. It was further submitted that the Complainants Legal Representative had previously asserted he could not file the Complaint form online as he did not have an email. It was submitted that his was not true as the Legal Representatives letterhead and Complaint form disclosed an email address. Further there is a means for a complaint form to be submitted electronically without the need for an email access.

It is submitted that at no point during the period from February 2017 until December 2017 was there any action taken by the Complainant in respect of the Complaint. The only Complaint form that was presented to the WRC was on the 23rd February 2018.

It is submitted, and Section 41 (6) of the Workplace Relations Act, 2015 is relied upon, that notwithstanding the fact that there is no specific provision allowing for a preliminary issue to be decided, the wording of the Act is perfectly clear. It is submitted that in all of the circumstances this case is, on the balance of probabilities, statute barred and the Adjudication Officer should not entertain this complaint.

Section 41(8) of the Workplace Relations Act, 2015, extends this 6 month period to a maximum of 12 months and it is submitted that if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within the first six months was due to a reasonable cause, even then the Complaint is still statute barred.

It is submitted that it is not reasonable for the Complainants Solicitor to appear or attribute blame on the postal services and it is noteworthy that he did not follow up on this issue within the six months. Cementation Skanska -v- A Worker DWTO425 and O’Donnell -v- Dun Laoghaire Corporation (1991) ILRM 30 are cited.

It is submitted that there is no justifiable excuse for the delay in referring the complaint. There was a 3 month window after the Complaint form was allegedly sent where the Complainant could have ensured it was received within statutory timelines. Furthermore, there was a subsequent 6 month window within which the Complainant could have endeavoured to show reasonable cause for her complaint to be submitted outside of that initial 6 month period and failed to do so. It is the sole responsibility of a complainant to ensure their complaint is presented to the WRC in time. It is alleged that the Complainants Solicitor did not do anything to ensure that this complaint form had been properly lodged and received until it was too late.

Accordingly, it is submitted there is no jurisdiction for an Adjudication Officer to entertain a complaint which has been presented almost 15 months after the date of contravention. It is submitted that the within proceedings should be dismissed on a preliminary basis as they are statute barred.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

Section 41 provides inter alia:

41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so

consents, a specified person may present a complaint to the Director General that the

employee’s employer has contravened a provision specified in Part 1 or 2 of Schedule

5 in relation to the employee and, where a complaint is so presented, the Director

General shall, subject to section 39, refer the complaint for adjudication by an

adjudication officer.

(2) An employee or an employer (in this Act also referred to as a “complainant”) or,

where the complainant so consents, a specified person, may refer a dispute as to the

entitlements of the employee under an enactment specified in Part 3 of Schedule 5 to

the Director General, and, where a dispute is so referred, the Director General shall,

subject to section 39, refer the dispute for adjudication by an adjudication officer.

(5) (a) An adjudication officer to whom a complaint or dispute is referred under this

section shall—

(i) inquire into the complaint or dispute,

(ii) give the parties to the complaint or dispute an opportunity to—

(I) be heard by the adjudication officer, and

(II) present to the adjudication officer any evidence relevant to the

complaint or dispute,

(iii) make a decision in relation to the complaint or dispute in accordance with

the relevant redress provision, and

(iv) give the parties to the complaint or dispute a copy of that decision in writing.

(b) In this subsection “relevant redress provision” means—

(i) in relation to a complaint under this section of a contravention of a provision

of an enactment specified in Part 1 or 2 of Schedule 5 the provision of that

enactment specified in Part 1 of Schedule 6,

(ii) in relation to a dispute as to the entitlements of an employee under an

enactment specified in Part 3 of Schedule 5, the provision of that enactment

specified in Part 1 of Schedule 6, and

(iii) in relation to a complaint under subsection (3), paragraph 1 of Schedule 2 to

the Act of 2012.

(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.

(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.

The first response to any query from the Legal Representative of the Complainant in relation to this particular Complaint from the WRC was on the 13th February 2018. On this date, the WRC confirmed it had received no application in relation to this particular complaint. The WRC acknowledged receipt of this complaint on the 23rd February 2018.

In the circumstances of this case, I do not accept that the Respondent Company is precluded from raising the issue of the statute of limitations because they did not do so at the earliest opportunity. Considering, the first time the Respondent Company was made aware of such a complaint is when they were informed by the WRC of the receipt of such a complaint.

Although, the Legal Representative of the Complainant has provided a Declaration in relation to the timeline as above, it is noted that none of the letters sent prior to the 30th January 2018 to the WRC have any stamps or indications that they were sent on the date attached. Further, no other documentation was provided to demonstrate that the aforementioned letters had been sent on the said dates.

Section 41 (6) of the Workplace Relations Act, 2015, provides that such a complaint shall not be entertained after the expiration of six months beginning on the date of contravention to which the complaint relates. Section 41(8) provides for an extension of this period to 12 months due to reasonable cause.

Accordingly, I have decided that the Complaint was submitted on the 23rd February 2018 and I cannot entertain such a complaint pursuant to Section 41 (6). Further, no reasonable cause was provided for any such delay so I cannot consider the provisions of Section 41(8). Ultimately, the complaint was presented 15 months after the alleged contravention.

I find that the Complaint (CA-00017963) made pursuant to Section 8 of the Unfair Dismissals Act 1977, is statute barred and fails.

Statute of Limitations