ADJ-00016016

Complainant

Respondent

Anonymised Parties

An Information Officer

A Business Information Services Provider

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-00020775-001

25/07/2018

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

CA-00020776-001

25/07/2018

The Complainant had been placed with the Respondent entity pursuant to a Community Employment Programme. The Programme is designed to help persons who are long term unemployed (or otherwise disadvantaged) to get back to work by offering part time and temporary placements in jobs based in the local community. The placement is meant to allow the individual gain experience and skills.

The Complainant presented in person and outlined his position. The Complainant had also provided me with a written submission exhibiting documents dated the 23rd of August 2018. The Complainant says he was unfairly dismissed when his employment was terminated while he was out on sick leave.

The Respondent was represented by a member of the Board of Directors who further developed the submission made to the WRC on the 14th of August 2018.

By way of preliminary point, the Respondent has asked that I rule that this matter is out of time.

I have carefully listened to the parties herein. It is common case that the Complainant was engaged on a CE scheme with the Respondent and I accept that the Contract commenced in May of 2015 and that there were a number of Contracts of Employment, the last one due to expire in October of 2017.

The Complainant was hopeful of getting an extension of his time on the CE Scheme as is sometimes provided for in the case of persons over the age of 62 under the Service support pilot stream wherein participants aged 62 and over may stay on continuously up to the age of 65 years of age. I accept that the paperwork looking for this extension had been processed. I am not clear that the Complainant was ever definitively told that he was going to be kept on under the scheme.

The Complainant had been having difficulty at a local level with his hours of work. The Complainant went out on certified sick leave in August of 2017 and was in fact absent from the workplace for the remainder of his then operable Contract of Employment which expired by operation of Law on the 6th of October 2017.

It is common case that the complainant had been notified of the imminent expiration of his Contract of Employment in August of 2017 and before he had gone out on sick leave. I have been told by the Respondent that the Complainant was not in touch with the workplace, and that the Respondent believed that it was obliged to ensure that these much sought after opportunities would be filled by the next appropriate applicant.

The Complainant was unaware of these developments and was therefore most surprised to receive his P45 in the post some six weeks after the end of his Contract of employment as he held a genuine belief that he had been, or was going to be, re-engaged under the Service Support Scheme.

There can be no doubt, therefore, that (on a date unspecified in evidence) in and around the first half of November 2017, the Complainant was on Notice that his employment had been terminated as of the 6th of October 2017. I am therefore satisfied that the Complainant had six months from that date within which to submit his claim for Unfair Dismissal.

In Particular, the Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.

Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

Based on the foregoing the Complainant had until the 5th of April 2018 to lodge a Complaint under the Unfair Dismissals legislation. The Complainant’s Workplace Relations Complaint Form was only submitted on the 25th of July 2018. The onus therefore rets with the Complainant to demonstrate that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

I understand that the Complainant had brought other Complaints against this Respondent concerning Hours of Work at an earlier date and within six months of the termination of employment. I further understand that the Complainant and the Respondent have been engaged in dialogue concerning a number of matters since October of 2017. The Respondent has submitted that no reason has been provided to explain why the Complainant had not lodged a complaint under the Unfair Dismissals legislation at that time.

The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5):

“Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause”

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 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 to 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.”

I find on the application of the Labour Court’s reasoning above that the Complainant was unable to give reasons which both explained the delay and afforded an excuse for the delay. In the circumstances “reasonable cause” has not been established and the Complaint is therefore out of time.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00020775-001 – This complaint Fails

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00020776-001

- This complaint Fails