DWT191

The Adjudication Officer decided that the Appellant had made his complaint outside of the time limits set out in the Workplace Relations Act, 2015 for the making of a complaint and that consequently she did not have jurisdiction to hear the Complaint.

Preliminary matter

The Respondent submitted that the aspects of the within complaint relating to the Act at Sections 11, 12, 13, 14, 15, 17, 21 and 22 are statute barred having regard to the time limits for the making of a complaint as set out in the Workplace Relations Act, 2015 (the Act of 2015).

The Court decided to consider this matter as a preliminary matter having regard to the fact that a finding on this matter has the potential to dispose of those aspects of the appeal in their entirety.

The preliminary matter before the Court relates to complaints made to the Workplace Relations Commission on 7^thFebruary 2017. The cognisable period, having regard to the Act of 2015 at Section 41(6), for any such complaint is 8^thAugust 2016 to 7^thFebruary 2017.

It is common case that no breaches of the legislation in respect of Section 11, 12, 13, 14, 15, 17, 21 and 22 occurred during the cognisable period for the within complaint.

The Appellant submitted that any delay in making the within complaint was due to reasonable cause and submitted that the time limit set out in the Act should, having regard to the Act of 2015 at Section 41(8), be extended as a result

It is not disputed that the Appellant was absent from his employment throughout the entire cognisable period for the within complaint. The Appellant’s representative has submitted that the Appellant was unable, through illness, to make the within complaint until 7^thFebruary 2017. No medical or other evidence as regards this matter was tendered to the Court. The Appellant did not proffer testimony on this matter at the hearing of the Court.

It is not disputed that the Appellant engaged with a legal adviser in October 2016.

The Appellant’s representative tendered the Court of Appealjudgement of Hogan J inJ. McE. And The Residential Institutions Redress Board [2014]in support of his contention that the Court should make an order extending time for the making of the within complaint. The Appellant did not make a submission which would allow the Court to understand how, in his view, the application of that judgement could avail him in the within matter. The Court however notes that the decision of the Court of Appeal related to a remedial scheme and whose terms allowed a wide consideration of the applicability of time limits. The within matter can, in the view of the Court, be distinguished from that decision on the basis that the within matter relates to a protective statute which makes explicit provision for allowable considerations where the matter of applicable time limits arises. The Court is confined to the statute as a result.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.Here the test was set out 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 test formulated inCementation Skanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. stated as follows:

• The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

In all of the circumstances the Court concludes that the Appellant in the within matter has not established or demonstrated reasonable cause for his failure to make complaints as regards alleged breaches of the legislation at Section 11, 12, 13, 14, 15, 17, 21 and 22 at any time before 7^thFebruary 2017.

Determination on the preliminary matter

The complaints as regards breaches of the legislation at Sections 11, 12, 13, 14, 15, 17, 21 and 22 are made outside of the time limit permitted for the making of a complaint under the Act. The appeal in respect of those complaints fails and the decision of the Adjudication officer is affirmed.

The Court so determines.

The Appellant’s submitted that he had been afforded no holidays in the annual leave year ending 31^stMarch 2016 or from 1^stApril 2016 to 12^thOctober 2016.

Position of the Respondent

The Respondent submitted that the Appellant accrued a total of 13 days annual leave in the period of his employment from 1^stFebruary 2016 to 5^thOctober 2016. The Appellant availed of 23 days annual leave in that period. The Respondent submitted payslips for the Appellant covering the entire period of his employment with the Respondent.

Conclusion of the Court

The Appellant, at the hearing of the Court, did not dispute that he had availed of 23 days annual leave during his employment. The Court is satisfied that the payslips submitted by the Respondent, which were not disputed by the Appellant, substantiate the contention that the Appellant did in fact avail of leave to the degree that his entitlements under the Act were afforded to him at a minimum.

The Court finds that the complaint is not made out.

Determination

The Court determines that the Respondent was not in breach of the Act at Section 20. The Appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
21st January 2019______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.