MND191

The Court has carefully considered the submissions made in support of each side’s position and had taken account of the significant number of authorities submitted in support of their arguments.

The Court is satisfied that the Applicant’s complaint was presented to the WRC out of time. The Applicant’s last date of employment was 4^thFebruary 2016. The Court is satisfied that if there was a contravention of the Act then that date is the last date when such a contravention took place. As the Applicant’s claim was not presented to the WRC until 6^thDecember 2016, it was therefore over four months out of time.

Section 41(8) of the Workplace Relations Act 2015 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 established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination WTC0338CementationSkanska (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 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.

The test formulated inCementationdraws 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. (as he then was) 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.

The Court notes that the Applicant’s Trade Union representative had represented him throughout the disciplinary process leading up to and during his dismissal and had represented him at the appeal of that decision. At a late stage, just prior to the hearing of the unfair dismissal claim before an Adjudication Officer, the Trade Union decided to seek legal representation for the Applicant.

The Court has consistently taken the approach that it is for the Applicant 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. Having considered the submissions advanced in the course of the appeal, the Court cannot accept that an oversight on the part of the Trade Union representative is sufficient to explain the delay. The Applicant had the benefit of professional advice from the first stages of the disciplinary action taken against him and continued to have such professional advice for the full six months covered by the statutory time limit under the 2015 Act and beyond. Yet the claim was not submitted until prompted by the forthcoming hearing of the unfair dismissal claim.

It 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 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 the passage quoted above, 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.

Having regard to all the circumstances of this case the Court has come to the conclusion that the Applicant has not put forward a justifiable basis upon which an extension of time could be granted in this case. Therefore, the Court rejects the application for an extension of time.