ADJ-00014007

Complainant

Respondent

Anonymised Parties

Cleaner

Language and cultural institution

Representatives

Self-represented

Mcinnes Dunne

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-00017438-001

14/02/2018

The complainant commenced employment with the respondent on 25 September 2010 as a cleaner, working 20 hours a week and earning €801, gross, per month.

In December 2016 the respondent asked to take up full time employment. She was unable to do so.

She was given notice of her redundancy on 7 /2/17. She was unfairly selected for redundancy on 6 March 2017.

She submitted her complaint that she had been unfairly dismissed to the WRC on 14 February 2018.

Jurisdictional Issue.

The respondent submits that the Adjudicator does not have jurisdiction to hear the complaint as the complaint was lodged on 14 /2/18, 11 months after the date of the dismissal which occurred on 6/3/17. Section 8 (2) of the Unfair Dismissals Act, as amended by section 41 of the Workplace Relations Act 2015 requires the complainant to submit her complaint

” within a period of 6 months beginning on the date of the relevant dismissal.”

Jurisdictional Issue.

The complainant submitted a written statement on the 13 March 2018 asking for her complaint to be considered as the reasons for the delay in submitting her complaint meet the reasonable cause proviso as set out in section 8 (2) (b) of the Act.

She states that she understood that her solicitor had filed a complaint with the WRC. She rang him repeatedly in April and November to get an update as to how her complaint was proceeding. She emailed him in the 16 November 2017.Getting no response, she contacted the Citizens Information Centre. They helped her draft a letter to her solicitor on the 16 November. On their advice she rang the WRC to discover that the solicitor had failed to lodge her complaint. After that she had an issue with her foot that required attention.

She requests the WRC to accept that the reasons for the delay advanced by her constitute reasonable cause and are sufficient to permit her complaint to be considered.

Unfair Dismissal Complaint.

She has worked 20 hours a week since 2010. She was not offered a contract or a letter of appointment in 2010.

In December 2016 the respondent asked her to increase her hours to full time. She declined as she was also working with another company. She wished also to retain some social welfare benefits.

She states that she felt bullied by the respondent director into increasing her hours as he kept repeatedly sending a full-time contract for her to sign. The other part time cleaner was not compelled to work full time.

The respondent gave her notice of her redundancy on 7 February because she refused to take on full time work. She states that no adequate engagement took place with her about this proposed change to her working hours.

She was dismissed on 6 March 2017.

She was not offered the option of appealing the decision to make her redundant. The respondent replaced her with a full-time employee.

The complainant confirmed that she did not raise her complaints of bullying with the respondent.

She took up a new position on 17 March 2018.

Jurisdictional issue.

The respondent points to section 8 (2)(a) of the Act which deprives the adjudicator of jurisdiction to hear this complaint as the complainant did not submit her complaint within the statutory time limits.

The respondent contends that the reasons for the delay, submitted by the complainant do not amount to” reasonable cause”- the only circumstances in which an adjudicator can entertain a complaint submitted outside of the statutory 6-month time limit.

The respondent relies on the Department of Defence v Impact, EET2/2004 and Cementation Skanska V A Worker, WTC/03/44. In the latter case the Labour court stated

“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 of 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 complainant at the time”. The same decision also remarked that

“a short delay should be taken into account whereas a long delay may require more cogent reasons”.

The respondent notes that the complainant was aware of her rights at the time of her dismissal. She instructed solicitors to correspond with the respondent in March 2017 at the time of her dismissal. She offers no explanation as to why she omitted to engage with her solicitors until 8 months after the dismissal and why it took a further 3 months to lodge her complaint with the WRC. Correspondence between the complainant and her solicitor, opened at the hearing, indicates that on 9 March 2017 her solicitor advised that they could file a complaint for unfair selection for redundancy the following week. The complainant gave no evidence of having instructed the solicitor to proceed with her complaint, nor is there any evidence to indicate that the complainant’s solicitor either confirmed that he would proceed to submit her complaint or gave her reason to believe that he had, in fact, submitted a complaint on her behalf.

The respondent submits that the complainant has failed to show reasonable cause for the delay.

Unfair Dismissal Complaint

With prejudice to the respondent’s position on the jurisdictional issue, the respondent denies that the complaint was unfairly dismissed. The respondent undertook a business review in 2016. A newly renovated reception area, a language library and additional classrooms followed. This generated a need for a full time cleaner. The respondent contends that this meant that the need for a part time cleaner had diminished in accordance with Section 7 (2) (b) of the Redundancy Payment Act 1967. The respondent’s witness explained that they needed a cleaner to clean the classrooms between the hours of 8 am to 4pm at a time of peak activity when the classes and other activities were ongoing. The complainant wanted to work her own hours and wanted varying hours, for example, she wanted to work between 8 -10 am or 8 – 12 middays when there was little need for a cleaner. Peak demand occurred after the classes.

The respondent maintains that a move from part- time to full- time work is work of a different kind and rely on the decision of Dinworth v Southern Health Board UD 284/1977 which held that a move from day time to night time work is work of a different kind. The part- time cleaner role had ceased or diminished within the meaning of section 7(20 of the Act of 1967 as amended.

The respondent consulted with the complainant about the changing needs of the organisation. The respondent offered the complainant the full-time role on numerous occasions. She repeatedly declined the offer. The respondent states that regrettably they were left with no other option but to make the part-time position redundant.

She was offered the right of appeal. She chose not to exercise same. Letters confirming this were submitted to the hearing. The complainant contends that she was unfairly selected. She was the only part- time cleaner at the time bar a 76-year-old who had worked with the respondent for 46 years, was on the point of retirement and who did retire at the end of June 2017.

The complainant makes unfounded allegations of bullying with no supporting details. She never submitted a complaint or used the anti-bullying procedure.

Jurisdictional issue.

Section 8 (2) (b) of the Act of 1977 allows the adjudicator to entertain a complaint “within such period not exceeding 12 months from the date pf the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of notice within the period referred to in paragraph (a) was prevented due to reasonable cause”

I am guided by the conclusions in the decision of Cementation Skanska V A Worker, WTC/03/44. The Labour Court stated in considering if reasonable cause exists, regard must be had

“to the facts and circumstances known to the complainant at the time”.

I find that the complainant was consulting with her solicitor in March 2017 about her dismissal. No evidence was submitted to explain her belief that her solicitor had submitted an appeal to the WRC.

The complainant consulted the Citizens Information Centre on 16 November 2017. They gave her advice. A letter to her solicitor, dated 16 November 2017, asks for an immediate update on the passage of her complaint. She states in that letter that the WRC advised her that they had received no complaint from her solicitor. Crucially, her letter of 16 November discloses her knowledge that she was then 3 months over the time limit within which to bring complaints. She delayed a further 3 months before submitting her complaint to the WRC on 14 /2/18.

The complainant was aware of the facts concerning her complaint and of the requirements to enable her complaint to progress.

I do not find that there was a causal link between the reasons cited and the delay.

Based on the evidence and the law as developed in Labour Court decisions, I find that I do not have jurisdiction to hear this complaint of unfair dismissal.

I do not have jurisdiction to hear this complaint.

Time – barred complaint. No reasonable cause advanced.