Complainant

Respondent

Anonymised Parties

A Facilities Attendant

A Higher Education College

Act

Complaints

Reference No.

Date of Receipt

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

CA-00022236-001

28/09/2018

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

CA-00022236-002

28/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00022236-003

28/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00022236-004

28/09/2018

The complainant was employed by the respondent on the 7th August 2007 as a Senior Facilities Attendant.   He resigned from the employment on the 29th September 2017. He referred his complaints to the WRC on 28th September 2018 and he is claiming that he was constructively dismissed, that the respondent was in breach of the Terms of Employment (Information) Act, 1994, that he is entitled to notice under the Minimum Notice & Terms of Employment Act, 1973 and a redundancy payment under the Redundancy Payment Act, 1967.

The respondent submitted that the complaints have been referred outside the statutory time limits for referring the complaints.

The complainant said that he was employed by the respondent on the 7th July 2007.   He was on a fixed term contract which continued until 2011 when he was made redundant. He said that he disputed the redundancy with the respondent, he was successfully re-instated in his job 3 weeks later and he was given a contract of indefinite duration. He reviewed his personnel file in 2014 and he said he found correspondence there which he alleges shows that the redundancy was an attempt to deny him a CID. He said that he raised several grievances with the respondent which were not investigated to his satisfaction. He said that he was trying to address issues he had with a work colleague and the outcome to that investigation was that the issues were to be address between the two of them.

The complainant said that on the morning of the 21st December 2016 the relationship between himself and his work colleague deteriorated. He said that he lost his composure and he hit his work colleague. He was suspended from duty and the matter was investigated. Following the investigation, he was called to a disciplinary hearing in September 2017.   He decided to resign before the disciplinary hearing took place. He resigned with effect from 29th September 2017. He submits that he was constructively dismissed.

The respondent submitted that the complainant was referred outside the statutory 6 month time limit under Section 41 of the Workplace Relations Act, 2015 and that he has failed to provide reasonable cause for the delay for an extension of the time limit. The complainant resigned on the 29th September 2017 and referred his complaint on the 28th September 2017. It was submitted that the complaint is statute barred.

It was submitted that the complainant did not provide any cause for the delay in referring the complaint and I was asked to apply the Labour Court’s decision in the case of Cementation Skanska Skanska (Formerly Kvaerner Cementation) v Carroll, DWT0338.

In relation to the substantive issue, the respondent submitted that the complainant resigned, and no case of constructive dismissal has been established by the complainant. He was involved in an altercation with a work colleague resulting in the complainant physically striking the other employee. The complainant was placed off duty on full pay pending an investigation. The complainant was represented by his union throughout the investigation.   The outcome of the investigation was that the complainant had a case to answer. A disciplinary hearing was convened to hear an allegation of serious misconduct by the complainant. Before the commencement of the hearing the complainant’s union representative notified the respondent that the complainant would tender his resignation.

The respondent agreed to continue the complainant on full pay pending his resignation, but this did not happen. The complainant engaged a solicitor and the disciplinary hearing was rescheduled for the 25th of September 2017. The issue of the complainant’s resignation was again raised by his solicitor with the respondent. Following consultation between the parties the complainant emailed his resignation to the respondent on the 25th of September 2017 and his employment ceased on the 29th September 2017.

It was submitted that the complainant was not constructively dismissed. He had the benefit of legal advice to decide on his options and ultimately made the decision to resign.  

Preliminary Issue

The first matter I must consider is whether the time limit for referring the complaint to the WRC can be extended as the complaint was referred outside the time limit. Section 8(2) of the UD Act 1977 – 2015 provides:

“(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,”

The complainant resigned on the on the 29th of September 2017 and he referred his case to the WRC on the 28th of September 2018 and one day short of a year after resigning. He sought an extension of the 6 month time limit for referring his complaint.

Thetest for deciding if an extension should be granted for reasonable cause shown has been set out by the Labour Court in Determination No. DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. The relevant passage is: “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. 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.”

This reasoning was followed by the Labour Court in the case of Kepak Group v Valsomiro Augusto Arantes UDD1625, the Court stated in relation to an application for the extension of time limits:

“In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should be enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.”

The Labour Court went on to say:

“It is 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.”

The complainant provided no reason for the delay in referring his complaint apart from saying he was trying to put a distance between the events surrounding the resignation and the motive or reasons for the resignation.

I am satisfied that there was no reasonable cause put forward by the complainant to explain the delay in referring the complaint.   As there was no reasonable cause for the delay, I cannot grant an extension of the statutory time limit of 6 months for referring a complaint under section 2 of the UD Act 1977. I find I have no jurisdiction in the matter.

The complaint was referred outside the statutory time limit set out in the Unfair Dismissals Act and I find I have no jurisdiction in the matter.

The complainant stated that he was notified in writing of a change to his terms of employment. He accepted that he got a contract of employment.

The respondent submitted that the claim was referred outside the statutory 6 month period for referring a complaint to the WRC. The complainant resigned with effect from the 29th September 2017 and referred his complaint to the WRC on the 28th September 2018, therefore his complaint has not been referred within the requisite timeframe.

It was submitted that the complainant received a written statement of his contract on the commencement of employment and he was notified of any changes to the original statement. These included the renewal of his contract and confirmation of his attainment of a contract of indefinite duration.

Preliminary Issue

The complaint was referred outside the statutory time limit of 6 months and the complainant sought an extension. The Workplace Relations Act 2015 at Section 41(6) provides:

“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.”

And Section 41(8) 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.”

I note that the complaint was referred on the 28th of September 2018 referring to alleged breaches of the Act which occurred in 2011. The complainant accepted that he got a contract of employment and a contract of indefinite duration in 2011. He did not specify any changes to his contract which occurred, and which were not notified to him in writing.

I am satisfied that the complainant received a contract of employment in accordance with the Act which he signed on the 26th October 2007. I am also satisfied that he was notified in writing of changes to his contract following his appointment on a contract of indefinite duration by letter dated 21st July 2011. Any complaint about the changes to his contract in 2011 has been referred outside the statutory timeframe as set out in section 41 of the Act cited above. Therefore, I have no jurisdiction in the matter.

I find that the complaint was referred outside the statutory time limits and accordingly, I have no jurisdiction in the matter.

The complainant said that he did not receive all his rights during the period of notice.

The respondent submitted that the claim was referred outside the statutory 6 month period for referring a complaint to the WRC. The complainant resigned with effect from the 29th September 2017 and referred his complaint to the WRC on the 28th September 2018, therefore his complaint has not been referred within the requisite timeframe.

The complainant tendered his resignation by email dated the 25th of September 2017, effective from the 29th September 2017. He was not required to attend work and he was fully paid until the date of his resignation.

Preliminary Issue

The complaint was referred outside the statutory time limit of 6 months and the complainant sought an extension of the time limit. The Workplace Relations Act 2015 at Section 41(6) provides:

“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.”

And Section 41(8) 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 complainant gave no cogent reason for the delay in referring his complaint. In the Labour Court case of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, DWT0338 in the passage cited above, the LC states that it is a matter for the complainant to put forward a reasonable explanation for the delay. I am satisfied that there was no reasonable cause put forward by the complainant to explain the delay in referring the complaint to justify extending the time limit. Accordingly, I find that I have no jurisdiction in the matter.

I find that the complaint was referred outside the statutory time limits and accordingly, I have no jurisdiction in the matter.

The complainant stated that he did not receive a redundancy payment. He said that he was employed by the respondent on fixed terms contracts from 2007 up until July 2011 when he was made redundant. He disputed the redundancy and he was reinstated and given a contract of indefinite duration. He said that he was not paid any redundancy for the relevant period.

The respondent stated that the claim for a lump sum has been referred outside the statutory time limits as set out in section 24 of the Redundancy Acts. The complainant was served with a notice of redundancy in June 2011, but this was rescinded on the 20th of July 2011. The complainant’s employment continued without a break. He obtained a contract of indefinite duration and no redundancy as regards his position occurred.

Section 24 of the Redundancy Payments Acts provides

“Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied] that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

Notwithstanding subsection (2A), where an employee establishes to the satisfaction of the Director General—

(a) that failure to make a claim for a lump sum before the end of the period of 104 weeks mentioned in that subsection was caused by his ignorance of the identity of his employer or employers or by his ignorance of a change of employer involving his dismissal and engagement under a contract with another employer, and

(b) that such ignorance arose out of or was contributed to by a breach of a statutory duty to give the employee either notice of his proposed dismissal or a redundancy certificate,

the period of 104 weeks shall commence from such date as the Director General at his discretion considers reasonable having regard to all the circumstances.”

I note that the redundancy notification issued in June 2011 and the claim for a redundancy lump was made to the WRC on the 28th September 2018 and over 7 years after the redundancy notification. Therefore, the claim has been referred outside the statutory time frame of either 52 weeks or 104 weeks for making a referral in accordance with section 24 of the RP Acts. Consequently, I have no jurisdiction in the matter.

I find that the claim for a redundancy lump sum was referred outside the statutory time limits and accordingly I have no jurisdiction in the matter.

Unfair Dismissals Act, 1977, Terms of Employment (Information) Act, 1994, Minimum Notice and Terms of Employment Act, 1973, the Redundancy Payments Act, 1967, Time Limits.