ADJ-00015735

Complainant

Respondent

Anonymised Parties

A Care Assistant

A Care and Support Facility

Representatives

Marie Brody of Brody and Company Solicitors

Denise Fitzgerald of Gleeson McGrath Baldwin Solicitors

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-00019161-001

14/05/2018

The case concerns the alleged Constructive Unfair Dismissal of a Care Worker by a Care facility.

The Complainant maintained strongly that, by any reasonable reading of the Complaint based on the text boxes on the claim form, the Constructive Dismissal claim had been lodged as part of the 14th September 2017 complaint. CA-00113930-001

On becoming aware of a difficulty in this regard the Complainant’s Legal Advisor had immediately lodged a new Complaint form CA-00019161 -001 on the 14th May 2018. The Legal Advisor had written to the WRC Information and Customer Services Section on the 7th June 2018 and had stated therein regarding this point

“My failure to include same was my oversight due to misunderstanding her.

In the circumstances it was not my client fault that the said claim was not lodged on or around 14th September ,2017 when it should have been which was within the requisite 6-month period.”

The Complainant’s Legal Advisor maintained that any reasonable overview of the case would accept that a genuine misunderstanding had occurred and that the Complainant, a lady of non-Irish Nationality with limited English should be the beneficiary of Adjudication Officer favourable discretion.

The Respondent submitted a detailed written Submission which was supported by vigorous Oral evidence. Considerable Legal precedent and case law was cited to support their case that the time limits should not be extended beyond the first six months.

On a practical basis they pointed to the fact that the Complainant had engaged a Legal Advisor, a qualified Solicitor, who had written to the Respondent as early as the 2nd June 2017. Further Legal correspondence followed culminating in Complaint CA-00113930-001 under the Terms and Conditions of Employment (information)Act ,1994. There was no reference to any claim under the Unfair Dismissals Act until the correspondence of May 2018, some 8 months post the initial complaint and almost 12 months post the alleged date of the Constructive Dismissal.

The Respondent pointed to the fact that the Complainant was Legally represented by a Principal of a reputable firm of Solicitors and there was no rational excuse for the failure to lodge the claim properly in 2017 and certainly no reasonable cause as required by Section 8(2)(b) for the further delay until May 2018.

Legal precedent was quoted and relied heavily on the finding of the Labour Court in Cementation Skanska-v-Carroll -WTC0338. The Respondent pointed to the comments of the Court regarding “Short delays” v “Long Delays” and the need for “more cogent reasons” where the time period is greater.

The Respondent also pointed to case law regarding delays caused by difficulties in Solicitors offices or other Legal Administration failures. The view of the case law put forward was that misadventures in Solicitors Offices do not qualify as good reasons for the granting of time limit extensions by Adjudication Officers. Among cases referenced was Adjudication Officer decision Adj-00001568 which the Complainant felt was closely analogous to this case. Here the Adjudication officer did not grant an extension.

In summary the Respondent argued that the Complainant was legally advised from June 2017 and the final lodging of the Unfair Dismissal claim almost 12 months later could not be excused.

3:1       The Legal Precedents.

Section 8(2) of the Unfair Dismissals Acts, as amended by the Workplace Relations Act 2015 and other statutes, provides as follows:

            “(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General —

                        (a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of  the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is  satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,  and a copy of the notice shall be given by the Director General to the employer   concerned as soon as may be after the receipt of the notice by the Director  General.”

 As argued by the Complainant, the test to extend time to permit a claim of unfair dismissal submitted later than six months but within one year has been reduced from “exceptional circumstances” to “reasonable cause”. In Cementation Skanska v Carroll DWT0425, the Labour Court considered “reasonable cause” 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 length of the delay should be taken into account. A short delay may require   only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

 Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

            “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the     onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint   would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the   delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an   applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The circumstances explained by the Legal Advisor for the Complainant were very unfortunate. The Complainant in her oral evidence was not well versed in Legal matters and it was alleged had suffered from various difficulties both personal and work related for some time in 2016/ 2017.

However, all the correspondence pointed clearly to the fact that her Legal advisors were active on her behalf from June 2017.

A key issue was the fact that the September 2017 complaint under the Terms of Employment Information Act,1994 clearly referenced a Constructive Dismissal issue. It is not comprehensible why this fact did not alert the relevant legal advisors of the need to immediately lodge an Unfair Dismissals Act claim. An oversight and a misunderstanding as claimed in the letter of the 7th June 2018 is equally hard to follow.

The Adjudicator in Adj -00001568 made a telling observation.

“It is fair to say that this is the nightmare scenario for any person, including professional lawyers, engaged in advocacy on another’s behalf. The issue to be determined here is whether it can amount to reasonable cause to allow a late claim to proceed”.

 3:2       Conclusions

Having considered the Labour Court precedents, I am obliged to find that the claim of unfair dismissal cannot proceed. This is not to take from the Complainant’s obviously heart felt case. It is accepted that many Authorities argue the Act ( to follow its original intention) has to be somewhat flexibly interpreted in terms of time limits. A delay of a few days even a few weeks might be excusable but not a delay of the nature that occurred here. The WRC Administration service would have clearly acknowledged the submission of the terms of Employment (Information) claim of September 2017. Even allowing for normal pressures of business in a Legal office the Unfair dismissals claim could have been lodged for another almost three months. A letter of query could have been written, for example, to the WRC in this period.

Following the Skanska Labour Court precedent, while the reason proffered on the Complainant’s behalf certainly explains the reason for the late submission of the complaint, it does not excuse it.

The length of delay in this case was significantly more than a minimal one. An extension beyond the first six months cannot be conceded.

Accordingly, I conclude that the claim cannot proceed as it is statute-barred pursuant to section 8(2) of the Unfair Dismissals Act, as amended.

Act

Complaint/Dispute Reference No.

Summary Decision. Please refer to Section Three above for detailed reasoning.

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

CA-00019161-001

Under Section 8 (2) (a) the claim is out of time and cannot proceed to Adjudication