Complainant

Respondent

Anonymised Parties

HGV driver

Logistics Company

Representatives

Behan Barry Solicitors

Peninsula Group Limited

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-00015371-001

26/10/2017

The Complainant commenced working with the Respondent on the 15th of November 2006.   He received notification of the termination of this employment on the 24th of November 2016 and his employment ended on the 5th of January 2017.

He was in receipt of a gross weekly wage of €657.35. The reason given for his dismissal was frustration of contract. His claim was received by the Workplace Relations Commission on the 26th of October 2017.

Preliminary application:  

The Complainant made an application for extension of time pursuant to Section 41 (6) of the Workplace Relations Act 2015. The Act provides that an adjudicator may only extend the period of time from six months to twelve months where “reasonable cause” for the delay has been demonstrated by the Complainant.

Sections 41(6) to (8) of the Workplace Relations Act provide as follows:

“(6) 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.

(7) …

(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’s solicitor gave evidence of a previous claim for payment of wages which had been lodged by her office with the WRC on the 26th of May 2016.   This was under adjudication reference ADJ-00003367. The solicitor’s evidence was that that she had received written correspondence from the WRC on the 2nd of June 2016 acknowledging receipt of that complaint.

Her evidence in relation to this complaint was that on receipt by the Complainant of his notice of termination on the 24th of November 2016, she was engaged by him and she promptly wrote to the Respondent on the 29th of November 2016 confirming that her client wished to appeal the decision to unfairly dismiss him from his employment. Thereafter she entered into correspondence with the Respondent and its solicitors from the period 29th of November 2016 to when the appeal hearing was held on the 13th of December 2016.

The solicitor’s evidence was that the she on behalf of the Complainant lodged a new complaint with the WRC on the 12th of January 2017 m pursuant under the Unfair Dismissal’s Act 1977 - 2015. The solicitor entered into evidence an internal office email dated the 7th of February 2017 to a member of her staff requesting that they contact the WRC regarding the lodgement of the online complaint form on the 12th of January 2017 and seek the reference and confirmation that it was received. She also suggested requesting the WRC to join the new complaint with the earlier complaint which was lodged in May 2016.

There was a further internal office emails between the solicitor and her staff but it is now noted that these referred to the reference number of the earlier lodged Payment of Wages Act complaint.

As the solicitor had not received a written notification from the WRC, she wrote to them on the 27th of June 2017 quoting ADJ-00003367 and asking for confirmation when the hearing date would be arranged for same.

In October 2017 the representative for the Respondent emailed the WRC similarly enquiring in relation to the matter and confirming receipt of a claim under the Payment of Wages Act only. The email went on to ask for confirmation of if there were any further claims by the Complainant against the Respondent under any other Act.

Matters came to a head in October 2017 when it was confirmed by the WRC that a hearing date had been arranged for ADJ-00003367 in relation to the Payment of Wages claim and not the Unfair Dismissals complaint. There were emails between the WRC and the Complainant’s solicitor for a period of days involving checks to the WRC IT department for the January 2017 complaint form.

Ultimately the Complainant decided to lodge a fresh complaint under the Unfair Dismissal legislation with the WRC which he did on the 26th of October 2017.

The Complainant’s evidence was that he had instructed his solicitor to bring a claim under the Unfair Dismissals legislation. The Complainant’s solicitor gave evidence that she held a genuine belief that she had submitted the complaint under the Unfair Dismissal legislation in January 2017.   Her evidence was that she followed up as much as she could regarding the complaint lodged.

The Respondent objected to the extension of time application made by the Complainant.

Its case was the dismissal arose due to frustration of contract by the Complainant.

It disputed the Complainant’s efforts to minimise his losses.

I note that under the original Unfair Dismissal Act in 1977 the extension of time was on the basis that there was “exceptional circumstances” preventing the making of the claim within the initial six months. The introduction of the Workplace Relations Act in 2015 reduced this required standard to what was considered a lighter standard of “reasonable cause”.

In the Iarnrod Eireann/Irish Rail and Lynch case UD May 2018 which the Labour Court as a preliminary issue dealt with a similar case where there was confusion regarding the lodgement of a complaint by representative. The facts of that case are different from the one before me. In the decision of the Labour Court, Mr Peter Ward SC for the Respondent is referenced as having directed the Court to the following passage from paragraph 25.1 of Redmond on Dismissal Law (3rdEd., 2018):

“The case law consistently reveals that inadvertence on the part of a firm of Solicitors will not be accepted as excusing a delay.”

In Grove After School Care (Management Company) and O’Sullivan (PW 18/3, 2nd May 2018) the Labour Court referred to the High Court case of O’Donnell and O’Donnell v Dun Laoghaire Corporation [1991] IRLM 30 with its conclusion that the corresponding ‘good reasons’ test in judicial review cases must be an objective test, whereby the onus is on the plaintiff to show that there are reasons which both explain the delay and afford a justifiable excuse for it. The Court also observed that the approach taken by the Labour Court in Cementation Skanska and subsequent cases was approved by the High Court in Minister for Finance v CPSU and Others [2007] 18 ELR 36.

In summary the test has been clarified as follows:

The applicant must identify the reason for the delay and establish that it provides a justifiable excuse for it.

The onus is also on the applicant to establish a ‘causal connection’ between the reason provided for the delay and the failure to present the complaint on time. In effect the reason provided must be the actual reason for the delay.

I must be satisfied, as a matter of probability, that the complaint would have been presented on time were it not for the intervention of the factors relied upon as constituting reasonable cause.

Lastly, although the test imposes a relatively low level of reasonableness, there is some limitation on the range of issues that can be considered.

The Labour Court went on to state in the Grove case that for an extension of time to be granted, a Claimant must demonstrate that they were impeded, prevented or unable to commence proceedings within the 6-month statutory time limit.

Turning to the facts of this case, there is no doubt that the Complainant intended to bring the Unfair Dismissal proceedings and instructed his solicitor to do so. The existence of the earlier Payment of Wages claim led to the confusion as to whether there was a complaint lodged in January 2017 or not. It appears that all times in the interaction with the WRC, it was referring to the Payment of Wages claim and provided the Adjudication reference for same.  

Based on the facts presented to me at the hearings, I am satisfied that either due to systems failure or human error the Unfair Dismissal complaint wasn’t electronically submitted to the WRC in January 2017.

However, the caselaw in this area has been clear. Inadvertence on the part of a firm of Solicitors will not be accepted as excusing a delay. My decision is therefore not to allow the extension of the time limit allowed to lodge the complaint under Section 41(8) of the Workplace Relations Act 2015.

I have no jurisdiction to hear the complaint as it was lodged outside the time limits required under the Workplace Relations Act 2015. I find that the complaint is not well founded.