Complainant

Respondent

Anonymised Parties

A General Operative

A Religious Order

Representatives

The Complainant attended in person

Dore & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00023507-001

24/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00023507-002

24/11/2018

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

CA-00023507-003

24/11/2018

The Respondent is a Religious Order and conducts a small printing press operation. The Complainant was employed by the Respondent as a General Operative and carried out both domestic and printing duties during her period of employment. The Complainant claims that she was subjected to bullying and harassment in the workplace during her period of employment with the Respondent and that she was unfairly dismissed from her position on 30 November, 2017. The Complainant has sought to have these matters investigated in accordance with the provisions of Section 13 of the Industrial Relations Act 1969.

The Complainant also claims that the Respondent has contravened the provisions of Section 3 of the Terms of Employment (Information) Act, 1994 in relation to her employment.

The Respondent disputes the claims of bullying and harassment and unfair dismissal. The Respondent contends that the Complainant’s employment was terminated by reason of redundancy on the basis of declining revenue in its printing business.

The Respondent also disputes that it has contravened the Terms of Employment (Information) Act 1994 in relation to the Complainant’s employment.

CA-00023507-001 and CA-00023507-002 – Disputes under the Industrial Relations Act 1969

The Complainant submits that she has known the nuns in the Order since 2011 when she spent a month with them on a live-in basis. The Complainant subsequently kept in contact with the nuns and spent a period of six weeks in the convent in the Autumn of 2015 during which period she carried out domestic chores for them. The Complainant travelled to the convent on 6-8 occasions over the following 12 months during which period she also helped out with domestic work. The Complainant submits that she was only paid “pocket money” for the work carried out during these periods and that she was not paid at the appropriate rate.

The Complainant submits that she was offered a job and the use of a house belonging to the Respondent and took up residence in this house in November, 2016. The Complainant contends that she was promised free use of this house for the duration of her lifetime and that it would be signed over to her so that she would still have a home in the event that the convent was to close. The Complainant submits that she did not receive a written contract of employment from the Respondent until July, 2017.

The Complainant submits that she initially got on very well with the nuns. However, she noticed a change in the attitude of one nun (Sr. A) towards her after she took up residence in the house in November, 2016. The Complainant claims that she was subjected to narcissist abuse by Sr. A during her period of employment and she was afraid to say anything in case “she set her off”. The Complainant claims that she suffered severe trauma as a result of the bullying and harassment to which she was subjected by Sr. A.

The Complainant submits that she was unfairly dismissed from her employment by the Respondent on 30 November, 2017 after she was absent from work for two weeks on sick leave. The Complainant claims that she has suffered from Post-Traumatic Stress Disorder as a result of the trauma she had to endure during her period of employment with the Respondent and has not been medically fit to work since her dismissal.

CA-00023507-003 – Complaint under the Terms of Employment (Information) Act 1994

The Complainant contends that she agreed a verbal contract of employment with the Respondent on 12 November, 2016 which provided that she would be afforded the free use of a house owned by the Respondent for the duration of her lifetime. The Complainant contends that the Respondent also agreed to pay her €12 per hour rising to €15 per hour after three months of employment but it subsequently reneged on this agreement. The Complainant contends that she was only paid €10 per hour for the duration of her employment.

The Complainant contends that she did not receive a written contract of employment from the Respondent until July, 2017 but the terms contained therein were not those which she had verbally agreed in November, 2016. The Complainant submits that she was dismissed from her employment in November, 2017 and that the Respondent has subsequently initiated civil proceedings to reclaim possession of the house which had been provided to her as part of her contract of employment. The Complainant claims that the Respondent has contravened the provisions of the Terms of Employment (Information) Act 1994 in relation to her employment.

CA-00023507-001 and CA-00023507-002 – Disputes under the Industrial Relations Act 1969

The Respondent submits that the Complainant contacted the Order in Autumn of 2011 and expressed an interest in becoming a nun and she was afforded a one-month live-in period in order to allow her to understand and experience the way of life. During this time, the Complainant actively participated in the Community’s work, though she was satisfied by its conclusion that she was not called top life as a nun. She left the Community on good terms.

During a trip to a religious shrine in 2015, the Respondent again encountered he Complainant. She informed the Respondent that she had fallen on hard times, in that she had failed to gain employment, was reliant on job-seekers allowance, and had insufficient money for food and heating. The Complainant resided with her brother at the material time in question. The Respondent offered the Complainant the opportunity to come and stay at the convent intermittently. Between September, 2015 and October, 2016, the Complainant made approx. six trips to the Community, and during those trips she was offered some employment and was allowed to stay in the convent on a rent-free basis. The Complainant participated in Community life and the Respondent supported her through the provision of pocket money and money to buy clothing. In 2016 and 2017, the Respondent paid for the Complainant to take trips to visit Rome.

During the summer of 2016, the Respondent renovated a property belonging to the Order and the Complainant was allowed to reside at this property on an informal basis in November, 2016. The Complainant commenced working for the Respondent as an employee in January, 2017. She worked for approx. six hours per week in the convent and a further twenty-one hours per week in the printing department. The Respondent provided the Complainant with a written contract of employment on 24 July, 2017 on the conclusion of her six month probationary period. The Respondent terminated the Complainant’s employment on 30 November, 2017 on the basis of declining revenue from the printing department which meant that the Order could no longer afford to maintain her in employment.

The Respondent vehemently denies the Complainant’s claim that she was subjected to bullying and harassment in the workplace by one of the nuns during her period of employment. The Respondent submits that the Complainant’s contract of employment made provision for an internal grievance procedure to deal with any workplace grievances. The Complainant failed to make any complaint or raise any grievance in relation to the alleged bullying or harassment during her period of employment. The Respondent also denies the claim of unfair dismissal and contends that the Complainant’s employment was terminated by reason of redundancy.

CA-00023507-003 – Complaint under the Terms of Employment (Information) Act 1994

The Respondent disputes the Complainant’s claim that it has contravened the provisions of Terms of Employment (Information) Act 1994 in relation to her employment. The Respondent submits that the WRC does not have jurisdiction to inquire into this complaint on the basis that the Complainant has failed to refer the complaint to the Director General within the six-month time limit provided for in Section 41(6) of the Workplace Relations Act 2015. The Respondent also submits that the Complainant has failed to establish that her failure to refer the complaint within the required time limit was due to reasonable, and therefore, she cannot avail of an extension to the time limit under the provisions of Section 41(8) of the Act.

The Respondent submits, without prejudice to the issue of jurisdiction concerning time limits, that the Complainant was provided with a written contract of employment on 24 July, 2017 on the conclusion of her six month probationary period. The Respondent disputes the Complainant’s contention that she was promised free use of a house owned by the Respondent for her lifetime under the terms of her contract of employment. The Respondent submits that there are proceedings before the civil courts in order to reclaim possession of the house and that any issues related thereto do not fall within the jurisdiction of the WRC under the Terms of Employment (Information) Act 1994

CA-00023507-001 - Dispute under the Industrial Relation Act 1969

The Respondent raised a number of preliminary issues in relation to the WRC’s jurisdiction to investigate the claim of unfair dismissal. The Respondent submits that the Complainant did not have the requisite 12 months service to seek redress in respect of a complaint of unfair dismissal and that the claim has not been referred to the WRC within the requisite six-month time limit following the termination of her employment.

It is clear that an employee is required to have one year’s continuous service, subject to a number of prescribed exceptions, in order to seek redress for unfair dismissal under the Unfair Dismissals Act, 1977. However, in the instant case, the Complainant has referred a trade dispute relating to an alleged unfair dismissal for investigation by an Adjudication Officer in accordance with the provisions of Section 13 of the Industrial Relations Act, 1969. It should be noted that the referral of trade disputes for investigation by an Adjudication Officer under Section 13 of the Industrial Relations Act 1969 are not subject to any statutory time limits. In the circumstances, I am satisfied that I have jurisdiction to investigate the instant dispute in accordance with the provisions of Section 13(9) of the Industrial Relations Act 1969.

Having carefully considered the written and oral submissions of the parties on the substantive issue, I accept the Respondent’s contention that the Complainant’s employment was terminated by reason of redundancy on 30 November, 2017. However, I find that there was an absence of procedural fairness in relation to the manner in which the decision to terminate the Complainant’s employment was taken. In particular, the Respondent did not engage in any process of consultation in relation to the proposed redundancy or give the Complainant any prior notice that her position was in jeopardy. In the circumstances, I find that the manner in which the termination of the Complainant’s employment was effected was procedurally unfair.

Having regard to the length of service involved, I recommend that the Complainant be paid compensation in the amount of €2,000 in full and final settlement of this dispute.

CA-00023507-002 – Dispute under the Industrial Relation Act 1969

The Complainant has also referred a dispute under Section 13 of the Industrial Relations Act 1969 in relation to a claim of bullying and harassment in the workplace during her period of employment. I have given careful consideration to the written and oral submissions of the parties in relation to this dispute.

The Complainant has made a number of very serious allegations of bullying/harassment against one of the nuns (Sr. A) within the religious Order that employed her. I wish to make it clear that I am not in a position to carry out an investigation or make any findings of fact into the allegations of bullying and harassment. However, I am obliged in reaching my conclusions in this matter to take cognisance of the rights of all parties to the natural justice and fair procedures.

In this regard, I note that it was common case that the Complainant did not raise a grievance at any stage during her period of employment, either informally or formally, under the procedures in place in relation to the alleged bullying/harassment by Sr. A. In the circumstances, I am satisfied that the Respondent was not afforded any opportunity to deal with the Complainant’s allegations prior to the termination of her employment and therefore it was impossible for it to do anything about the said allegations.

Having regard to the foregoing, I find that I cannot recommend concession of the Complainant’s claim in relation to this element of her dispute.

CA-00023507-003 – Complaint under the Terms of Employment (Information) Act 1994

The Respondent raised a preliminary issue contending that the Complainant’s complaint under the Act was referred to the Workplace Relations Commission outside of the time limits prescribed in Section 41(5) of the Workplace Relations Act 2015. The Complainant did not dispute that the instant complaint was not referred within the prescribed time limits and made an application for an extension of the relevant time limits in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015.

The Complainant submits that she was suffering post-traumatic stress disorder following the termination of her employment on 30 November, 2017 and that her life has been severely curtailed as a result of the trauma she suffered during this period. The Complainant contends that she was not in a fit medical condition to submit a complaint to the WRC within the required time limits as a result of this trauma. The Complainant also submits that she had never previously submitted a complaint to the WRC and so was unaware of the statutory time limits governing the referral of complaints.

The Respondent submits that the Complainant has failed to establish that her failure to refer the complaint to the WRC within the prescribed time limits was due to reasonable cause. The Respondent disputes that the Complainant’s medical condition impaired her ability to refer a complaint within these time limits. In this regard, the Respondent submits that the Complainant was medically fit to send a letter to the Respondent on 23 April, 2018 which set out in great detail a number of complaints relating to her employment.

I am satisfied that the instant complaint was referred to the WRC outside of the statutory time limits. The Complainant’s employment was terminated on 30 November, 2017. I am satisfied that if there was a contravention of the Terms of Employment (Information) Act 1994, that that date is the last date when such a contravention took place. As the Complainant’s complaint was not referred to the WRC until 24 November, 2018, it was therefore clearly outside of the six month time limit but within the period of twelve months. I will therefore proceed to examine the Complainant’s application for an extension of the time limit.

Section 41(8) of the Workplace Relations Act 2015, provides: -

“(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 should be granted for reasonable cause shown is that enunciated by the Labour Court in the case of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. The Labour Court set out the test 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 Complainant has put forward a number of reasons to excuse the delay in support of her application for an extension of time. They relate, in the main, to a claim that she was medically unfit to attend to her affairs during the material period in question. I am satisfied that the Complainant has failed to adduce evidence concerning the issue of how her medical condition impacted on her capacity to refer a claim within the time limit. I note the Respondent’s uncontested evidence that the Complainant was in a position to send correspondence to it concerning matters arising from her employment within the relevant time period. In the circumstances, I find that this action undermines the Complainant’s claim concerning her medical capacity to refer a claim under the Act during the material period in question.

It is a matter for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. Having considered the submissions of both parties, I am satisfied that the Complainant has failed to satisfactorily explain the delay in referring the claim under the Act. I am satisfied that I have not been presented with any reasons from which I could reasonably conclude that the Complainant was impaired due to a medical condition in referring this claim within the statutory time limit. Furthermore, while I accept that the Complainant may not have been aware of the statutory time limit, it is well settled that ignorance of one’s legal rights and responsibilities cannot be accepted as an excuse.

Having regard to foregoing, I find that the Complainant has neither explained the delay in referring her claim nor has she put forward a justifiable basis upon which an extension of time could be granted in this case. Therefore, I find that the Complainant has failed to comply with the relevant time limits provided for in Section 41(5) of the Workplace Relations Act 2015. Accordingly, I do not have jurisdiction to inquire into the complaint.

CA-00023507-001 – Disputes under the Industrial Relation Act 1969

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I recommend that the Complainant be paid compensation in the amount of €2,000 in full and final settlement of this dispute.

CA-00023507-002 – Disputes under the Industrial Relation Act 1969

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

I find that I cannot recommend concession of the Complainant’s claim in this dispute.

CA-00023507-003 – Complaint under the Terms of Employment (Information) Act 1994

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Complainant has failed to comply with the relevant time limits provided for in Section 41(5) of the Workplace Relations Act 2015. Accordingly, I do not have jurisdiction to inquire into the complaint.

Industrial Relations Act 1969 – Trade Dispute – Section 13 – Unfair Dismissal – Bullying and Harassment – Terms of Employment (Information) Act 1994 – Section 3 – Contract of Employment