Complainant

Respondent

Anonymised Parties

An Employee

Tool Hire Company

Representatives

The Hr Suite

Act

Complaint Reference No.

Date of Receipt

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

CA-00021632-001

06/09/2018

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

CA-00021635-001

06/09/2018

The Complainant was employed by the Respondent company from 14th October 2013 to 5th December 2017.

The Complainant submits that he was unfairly dismissed by the Respondent. He also claims that he was not notified of a change to his terms of employment.

The Complainant was unrepresented at the hearing and confirmed that he is comfortable to proceed with the hearing without representation. The Complainant did not offer a written submission. He was offered some time to familiarise himself with the Respondent’s submission.

Shortly after the conclusion of the hearing the Complainant made a request to the Adjudication Officer for the parties to return to the hearing venue. As the Respondent did not leave the venue, the hearing resumed and the Complainant was given further opportunity to submit additional evidence and further comment on the Respondent’s submission.

Additional submissions were received from the parties on 27th and 28th March 2019.

The Respondent raised a preliminary matter of time limit. The Respondent argues that the Complainant submitted his claims under the Unfair Dismissals Act, 1977 and under the Terms of Employment (Information) Act, 1994 to the WRC on 6th September 2018. However, he resigned from his employment on 5th December 2017. The Respondent argues that, as the claims were submitted 9 months after his resignation, they were not submitted in line with the time line outlined in the Act.

The Complainant submits that there were a number of events that prevented him from submitting his claims to the WRC within the specified time limit. These were as follows:

·        Shortly after the termination of his employment his stepdaughter’s father passed away and the Complainant was since required to travel to Dublin on 4-5 occasions.

·        In the end of March 2018 the Complainant’s stepdaughter’s grandfather passed away abroad. The Complainant did not travel to the funeral.

·        In the end of April 2018, the Complainant’s cousin passed away.

·        Following on from this in the end of April 2018 the Complainant’s stepdaughter was hospitalised due to the misuse of medication, she remained in hospital for over a week and requires ongoing monitoring.

·        The Complainant’s partner suffers from depression and thyroid problems and is currently attending three professionals.

·        The Complainant attended hospital in the last few months with kidney and throat issues.

·        In May 2018 a shower leak destroyed half of the Complainant’s house.

The first matter I must decide is if I have jurisdiction to hear these complaints.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

“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.”

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“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 Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 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.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

Complaint under the Unfair Dismissals Act

Section 1 of the Unfair Dismissals Acts, as amended, provides:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which that notice expires,

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Acts 1973 to 2005.

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specific purpose (being a purpose of such a kind that duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of expiry or cesser;

In the case before me the Complainant claims constructive dismissal. In cases of constructive dismissal notice entitlement is not taken into account in assessing the date of dismissal (Stamp v McGrath UD 1243/1983). Therefore, the date of dismissal is 5th December 2017.

Under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form in respect of the unfair dismissal claim must have been submitted by 4th June 2018. The complaints were referred to the WRC on 6th September 2018. I find that the herein complaint has been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act 2015.  

I note that the Complainant’s employment was terminated on 5th December 2017. Some 5 days later his stepdaughter’s father passed away. I note that due to this untimely death the Complainant was required to travel to Dublin 4-5 times. By the Complainant’s own evidence there were no major events between 10th December 2017 and the end of March 2018 when his stepdaughter’s grandfather passed away abroad. I also note that the Complainant did not travel abroad to attend the funeral. Some one month later the Complainant’s cousin passed away. The Complainant also submitted that in the end of April 2018 the Complainant’s stepdaughter was hospitalised and remained in hospital for approximately one week. Furthermore, his partner suffers from ongoing health problems, albeit her health is improving. The Complainant also claimed that he himself suffered from kidney and throat issues and attended hospital in the last few months. The Complainant did not proffer any evidence in that regard.

The Complainant stated at the hearing that, following the cessation of his employment he made an effort to secure a new employment. The Complainant confirmed to the hearing that had an opportunity arose he would be in a position to accept a part or full-time employment despite his own and his family members’ health problems and other difficult events.

I note that the Complainant was in communication with the Respondent approximately one week after his resignation to obtain records in order to claim benefits from the Department of Employment Affairs and Social Protection. The Complainant confirmed that he had this matter attended to and was in receipt of the unemployment benefit from the end of December.

I accept that the events which occurred following the cessation of the Complainant’s employment could have a detrimental effect on the Complainant’s ability to manage his responsibilities.   However, the Complainant successfully managed to attend to the matter of social welfare benefits. By his own evidence he also actively sought new employment and was in a position to take up a new job had an opportunity arose.

I have concluded that the Complainant has failed to establish a causal connection between the factors relied upon by him and the delay in presenting the within claim. Accordingly, I find that no reasonable cause was shown to empower me to extend the deadline for submission of a claim for redress under the Unfair Dismissals Act.

Complaint under the Terms of Employment (Information) Act

Section 5 of the Act stipulates as follow:

“Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect,”

The Complainant argued that a change was introduced to his terms of employment at some stage in the end of 2015 / beginning of 2016. The Complainant was unable to provide a more specific date. The Respondent argued that the arrangement in that regard commenced on 8th January 2016 and ended in June 2017, some six months prior to the termination of the Complainant’s employment. Even if the later date of 8th January 2016 was accepted to be the correct date, the Respondent should have notified the Complainant of the nature and date of the change not later than 7th February 2016. Therefore, a claim in that regard should have been submitted to the WRC by 7th August 2016, at the latest.

The claim was clearly submitted outside the time limits and even an extension of time to 7th February 2017 would not rectify this. Therefore, this claim is out of time and statute barred.

Having carefully considered all evidence available to me I find that the Complainant has failed to submit his complaints within the required time limit. Taking all of the foregoing into consideration, I find that the claims are out of time and therefore statute barred.

Time limit- unfair dismissal- terms of employment