PDD194

This is an appeal brought by Ms Bernadette McPartlan (the Appellant) against a decision of an Adjudication Officer in respect of a complaint of penalisation contrary to the Protected Disclosures Act 2014 (the Act). The Appellant was employed by University Hospital Waterford (the Respondent) as a Senior Staff Nurse until 4^thJune 2017.

The Appellant’s complaint was received by the Workplace Relations Commission on 26^thOctober 2017. The Appellant alleges that the last act of penalisation within the meaning of the Act occurred on 4^thApril 2017. Having regard to section 41(6) of the Workplace Relations Act, the six-month time limit within which the initiating complaint in respect of the alleged penalisation should have been referred to the Director General of the Workplace Relations Commission expired, at the latest, on 3^rdOctober 2017. The Complainant, therefore, lodged her complaint out of time.

The Court, at its hearing, set out to the parties that it would hear the parties in relation to the matter of time limits as a preliminary matter on the basis that its determination upon this matter had the potential to dispose of the entire matter.

Summary position of the Appellant

The Appellant submitted that she understood that the time period for making a complaint under the Act commenced upon the termination of her employment with the Respondent on 4^thJune 2017. She submitted that this apprehension on her part amounted to an ignorance of the facts giving rise to the within complaint rather than ignorance of the law. She submitted that while ignorance of the law cannot be excused by the Court as a basis for delay, an ignorance of the facts that give rise to her legal rights can be excused. She submitted that her belief as regards the law in respect of applicable time limits amounted to ignorance of the facts giving rise to her legal rights.

She submitted that she bore significant family responsibilities during the period which affected her ability to make her complaint on time. She also submitted that she was undertaking study in the period and that she suffered from dyslexia. She submitted that several serious personal, financial and professional reasons were responsible for the delay in making her complaint.

The Appellant submitted orally to the Court at its hearing that if she had known that the relevant time limit commenced earlier than the date of conclusion of her employment she would have submitted her complaint in time.

Summary position of the Respondent

The Respondent submitted that none of the reasons advanced by the Appellant amounted to reasonable cause for the delay in submitting her complaint. The Respondent submitted that the Appellant had stated in her appeal to the Court that she had accessed legal advice on 4^thSeptember 2017 which was well within the relevant time period and in addition had availed of the services of her Trade Union and an advocacy body in the relevant time period. The Respondent submitted that any ignorance by the Appellant of the relevant provisions of the law as regards time limits cannot be found to excuse the delay.

The Respondent submitted that no medical evidence had been submitted as regard the Appellant’s contended for dyslexia and that in any event she had demonstrated a facility to formulate lengthy correspondence with the Respondent on numerous occasions during her employment.

The Respondent submitted that the family responsibilities of the Appellant and her engagement in study cannot constitute reasonable cause to extend the time limit set out in the Act.

Discussion and conclusions

At first instance the Adjudication Officer held that the Complainant had failed to demonstrate reasonable cause for her delay in bringing the claim.

Section 41(8) of the 2015 Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

• “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.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. stated as follows:

• “The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The Appellant set out a range of factors as bearing upon her capacity to submit the within complaint on time. Notwithstanding the range of reasons put forward as constituting reasonable cause for the delay the Appellant clarified at the hearing of the Court that she would have made her appeal in time but for the fact that she assumed she could make her complaint within six months of the date of the termination of her employment which was the 4^thJune 2017. It follows therefore that the Appellant’s mistaken belief as regards the time limits applicable for the submission of the within complaint was the operative reason for the Appellant’s delay in making her complaint on time. The Court cannot find that a lack of knowledge of these statutory time limits amounts to a lack of knowledge of facts giving rise to her legal rights. The Court finds that the lack of knowledge contended for by the Appellant, notwithstanding her receipt of professional and legal advice on the matter of her complaint, amounts to a contention that she was ignorant of the law.

In Galway & Roscommon ETB UDD1624, this Court found as follows:-

• “The Court is satisfied that the legal principle ignorantia juris non excusat (“ignorance of the law excuses not”) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit.

  While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the Act it cannot excuse a delay. 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.”

In any event, the Court applies the principles set out in Galway & Roscommon ETB UDD1624 and finds that the Appellant has failed to demonstrate reasonable cause for the delay in making the within complaint.

Determination

The Court determines that the Complainant has failed to establish that the reasons she relies upon provides a justifiable excuse for her delay in commencing proceedings under the Act. The Appeal therefore fails.

The decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
CC______________________
24 April 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.