ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014885
Parties:
| Complainant | Respondent |
Anonymised Parties | A Legal Secretary/Legal Executive | Solicitors |
Representatives |
| Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00019602-001 | 03/04/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019602-002 | 03/04/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00019602-003 | 03/04/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00019602-004 | 03/04/2018 |
Date of Adjudication Hearing: 23/8/2018 and 12/10/2018
Workplace Relations Commission Adjudication Officer: Louise Boyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant commenced employment on 2nd May 2017 and her employment ended on 6th September 2017. The complainant claims that her employment was terminated owing to a protected disclosure, that she was penalised owing to raising health and safety issues, that she did not receive her terms and conditions of employment and that she was unfairly dismissed.
This decision should be read in conjunction with decision Adj 00013087. |
Summary of Complainant’s Case: CA-00019602-001
As this complaint was duplicated in error, the complainant advised that this complaint was withdrawn as it is dealt with through CA-00017304-001 contained within Adj 00013087. |
Summary of Complainant’s Case: CA-00019602-002
As this complaint was duplicated in error, the complainant advised that this complaint was withdrawn as it is dealt with through CA-00017304-002 contained within Adj 00013087. |
Summary of Complainant’s Case: CA-00019602-003
As this complaint was duplicated in error, the complainant advised that this complaint was withdrawn as it is dealt with through CA-00017304-003 contained within Adj 00013087. |
Summary of Complainant’s Case: CA-00019602-004
Preliminary Issue 1 At the start of the hearing, the complainant advised she wished to amend the name of the respondent. She expressed that she had difficulty determining the correct name of the respondent and had concerns that that there could be various versions of it.
Preliminary Issue 2 When the complainant submitted her claims, she had been allocated the reference number Adj 14885 (herein) and also Adj 13807. While there had been some duplication of complaints in error, CA-19602-004 was the only complaint under Section 7 of the Terms of Employment (Information) Act, 1994 which had been referred. Preliminary Issue 3: In response to the preliminary issue raised by the respondent that her complaint was out of time, the complainant disputed same and advised that she had to spend a considerable amount of time gathering all the information in relation to her claim including researching the company ownership and trying to ascertain the reason for dismissal. She also put forward that she does not have knowledge of the legislation and that it was a difficult process for her and therefore the time limit should be extended.
Substantive Issue: The complainant commenced employment on 2nd May 2017 working at Location X. The complainant detailed that her background was that of legal executive and expressed her concerns that she was hired as a legal secretary. It was outlined that the respondent wished to hire her as she had a qualification in Irish translation and the complainant detailed that some of the difficulties that arose during her employment related to concerns the complainant had that her salary would not reflect this additional Irish translation work.
Prior to commencement employment, on April 27th, 2017 the complainant requested a copy of a full contract of employment but Mr A, a solicitor at the firm, replied that they provide this in the first 4 weeks of employment and she never received it during her employment. She raised a number of health and safety issues and her employment was later terminated.
The complainant detailed that if she had received her terms of employment when she had requested them it would have helped resolve issues she encountered during her employment including whether translation services were part of her job.
Various case law was cited included Moorehouse v The Governor Wheatfied Prison & Ors IESC 21(2015), Comcast Int Holidings v Minister for Public Enterprise & Ors [2012] IESC50, Board of management of St David’s CPS Secondary School Artane v McVeigh HSD118, Geraldine McCarthy v ISS Ireland Ltd and Another [2018] IECA287, Duffy v Hugh McAvoy t/a Talk To me UD 1048/2009. |
Summary of Respondent’s Case: CA-00019602-004
Preliminary Issue 1: The respondent outlined that there had been changes within the Solicitor firm and detailed the correct name of the respondent. In response to the submission by the complainant for a change in the name of the respondent they advised of no objection if the complainant wished to amend the name of the respondent on the claim form. Preliminary Issue 2: The respondent outlined their confusion with the number of claims submitted by the respondent, some of which appeared to be duplicated. Preliminary Issue 3 The respondent advised that the claim was out of time and that no basis had been shown for the extension of time beyond the 6-month period. Substantive Issue: It was outlined that details on the complainant’s terms and conditions had been provided to her within an email on April 27th, 2017 prior to her commencing employment. |
Findings and Conclusions: CA-00019602-004
Preliminary Issue 1: Much time was taken up with the complainant’s requests to change the name of the respondent. The complainant was advised of the importance of having the correct legal name of the respondent. The complainant insisted that her version was the correct legal name of the respondent. The respondent did not object to same. As the respondent were not prejudiced by this request and owing to the circumstances, the complainant was facilitated with the change in the name. Preliminary Issue 2: It was accepted that the complainant had just one complaint in relation to section 7 of the Terms of Employment (Information) Act, 1994 and a decision in relation to this complaint is contained herein in CA-00017304-004 with all other decisions in relation to her other complaints contained within Adj 13087. Preliminary Issue 3: A preliminary issue was raised with regard to the claim being out of time. It was submitted that the complaint was out of time as the complainant’s final day of employment had been 6th September 2017 and the claim lodged on 3rd April 2018. Subsections 6 and 8 of Section 41 of the Act of 2015 state: “(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 established test for deciding if an extension of time should be granted, as requested by the complainant, 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; She must show that, if the circumstances were not present, she would have submitted the claim.
The complainant advised that her delay in submitting her claim was due to a number of reasons including that she did not have knowledge of the legislation, owing to the large amount of information she had to pull together and including researching the owners of the partnership. I note that she was able to submit other claims within the six months period.
In Minister for Finance v CPSU and Ors [2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.”
Taking all the evidence into consideration and having considered the Labour Court authorities, I am obliged to find that the claim cannot proceed as the complainant has not shown reasonable cause, therefore, it is statute-barred, and I do not have jurisdiction to hear the complaint. I must conclude therefore that the complaint is therefore, not well founded and is dismissed.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not have jurisdiction to hear the complaint. I must conclude therefore that the complaint is therefore, not well founded and is dismissed. |
Dated: 29 April 2019
Workplace Relations Commission Adjudication Officer: Louise Boyle
Key Words:
Terms of employment, time limits |