ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00004058

Parties:

Complaint(s):

Date of Adjudication Hearing: 06/12/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complains.

Background:

The Complainant, a Polish National, was employed as a General Operative in a Bakery. The Complainant maintained that he was employed from the 18th of January 2013 until the 9th of January 2016.The Complainant submitted complaints relating to breaches under the Organisation of Working Time Act in relation to his weekly working hours and his daily rest period. He also submitted a complaint of constructive dismissal.

The Responded denied the allegations and raised a preliminary issue regarding the complaint being out of time.

Summary of Complainant’s Case:

CA-00005737-001Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant submitted that there were continuous changes in his work roster without him being made aware of it. He maintained that there were occasions where he would return home from work to try and get some sleep only to be awoken by a phone call from his manager telling him that he was late. The Complainant contended that he would return to work to find his roster had changed and he tried to explain that he had only left a few hours previously. He submitted that this would have happened on a regular basis and although he explained this to management nothing changed. Accordingly, there were regular occasions where he did not get his daily rest break.

CA-00005737-002Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant also submitted that he was required to work more than a 48-hour week. He maintained that his hours of work were different every week, and it was quite often that he would work well above the 48 hours over a seven day period.

CA-00005737-003Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977                  

The Complainant submitted that as a result of being placed under constant financial and work-related stress due to incoherence in his weekly rates of pay as well as continuous changes to his work roster by the Respondent that he was put in a position of having to leave his jobs as his concerns were not properly addressed.

Summary of Respondent’s Case:

The Respondent submitted that the Complainant had ceased work on the 30th of December 2015 and as his complaint to the Workplace Relations Commission had not been submitted until the 8th of July 2016 that it should be deemed to be out of time.

Preliminary Issue regarding the Complaint being out of time.

The Respondent advised that the Complainant had sought to leave his employment in November 2015 where he indicated he was resigning from the company. The Complainant gave notice at that stage and the Respondent submitted that the Complainant would have signed a notice stating the date of his leaving employment was to be 8th January 2016.

The Respondent maintained that during the period of time coming up to the end of 2015 the Complainant indicated to his manager that he wished to finish on the 30th of December 2015, and not the 8th January 2016. At that time the Complainant would have explained to the Respondent that he was intending to return to live in a different area away from his current workplace and consequently he would not be available for work from that 30th December 2015.

The Respondent submitted that it did not pay the Complainant for any work during January 2016 as the Complainant did not attend work, and this was evidence that he has in fact resigned on 30th December 2015. The Respondent submitted the Complainant would have received a payment in the first week of January 2016 as payment in arrears for his time worked up to the 30th December 2015. The Respondent further maintained that the Complainant was not rostered to work from the 30th December 2015 and submitted rosters to support that position.

The Respondent also maintained that the Complainant would have referred to a solicitor over the period from December 2015 to June 2016 and therefore he would have been aware of his rights and where any complaints should have been submitted within the 6 months of their last occurrence. In this regard the respondent maintained that any alleged breaches to the Organisation of Working Time Act, which it denied, were out of time and therefore the Adjudicator did not have jurisdiction to hear the case. Whilst the respondent submitted that the complainant may seek to have the period of time to make his complaint extended to 12 months on the basis of reasonable cause, no reasonable cause existed in the case of the complainant.

The Respondent also contended the Complainant was not unfairly dismissed in that he left of his own accord and chose to leave earlier than the date contained in his notice period. The Respondent contended that to suggest otherwise was not supported in the facts of the case, and as the date of termination of employment was 30th December 2015 he was also out of time to have his complaint heard.

The Respondent submitted that the established test for deciding if an extension of time should be granted for reasonable cause was formulated by the Labour Court in the case of Cementation Shanska V Carroll. The Respondent also submitted that the case of Salesforce.com V Alli Leech set jurisprudence for reasonable cause.

Complainant’s response to the Preliminary Issues:

The complainant submitted that whilst he had sought to leave work in early November 2015 he was asked by his manager to submit his notice in writing. The manager typed up the Complainant’s letter of notice and provided him with a written note which indicated the termination date to be 8th of January 2016. The Complainant advised that he did not recall approaching his manager during December informing him that he would be leaving his employment before the 8th of January 2016. The complainant submitted that he had not moved to a new area to live until the 12th of January 2016 and therefore he would not have ceased working until the 8th of January 2016.

In cross examination at the hearing the Complainant was unsure as the whether he would have sought an earlier date of leaving than 8th January 2016, and he also maintained that he could not recall whether he actually worked during the first week of January 2018. The Complainant was asked whether he received any payment for work or whether he was rostered for work in January 2016 and maintained that he could not recall.

The Complainant submitted that as a consequence of his work experience he was suffering anxiety and stress which had contributed to the reason for leaving his employment. The Complainant further contended that as a consequence of the level of stress and anxiety he suffered he was not in a fit condition to consider matters until al number of months after he left his employment.

The Complainant submitted that in March 2016 he would have brought his concerns to his solicitor and were data requests were made by his solicitor at that point. He further maintained that he provided his solicitor with his written notification of termination which indicated the 8th January 2016, and on that basis his solicitor concluded his work would have finished on the 8th of January 2016. It was therefore argued that the submission of his complaint to the Workplace Relations Commission was within the 6-month period, was in time, and was entitled to be heard at the adjudication.

Findings and Conclusions:

The Respondent maintained that the complaints were out of time in that the Complainant’s last day of work was 30th December 2015 and the complaint was not made to the WRC until 8th July 2016.

In accordance with Section 41(6) of the Workplace Relations Act 2015, (the Act) 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. Section 41(8) of the states 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 date of termination of employment is disputed between the parties. The Complainant argued that he worked until 8th January 2016 and therefore his complaint was within time. Having reviewed the evidence I am satisfied that the initial letter of resignation stated 8th January 2016, however evidence supplied by the Respondent regarding the rosters for January 2016, and the payroll indicates that the Complainant did not work from 30th December 2015. Furthermore, when asked at the hearing the Complainant could not recall whether he actually did work for the first week in January 2016.

I therefore find that the Complainant resigned on 30th December 2015, and as the complaint was not submitted until 8th July 2016 it is deemed out of time in accordance with Section 41(6) of the Act. I must therefore consider whether there is reasonable cause for the submission to be made after the six month reference period.

When making an application for an extension of time, the grounds should be carefully presented and backed by evidence. The standard of “reasonable grounds” is a relatively low threshold. The Labour Court in Cementation Skanska v Carroll DWT 38/2003 (a case under OWTA 1997) in considering whether reasonable cause exists has decided it is for the claimant to show that there were “reasons which both explain the delay and afford an excuse for the delay (and)… the explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd… The reasonable grounds must be an objective standard, applied to the facts and circumstances known to the claimant at the material time”. Accordingly, “the claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon and had those circumstances not been present, he would have initiated the claim in time”. The Court also observed that a short delay might require only a “slight explanation” whereas a long delay might require “more cogent reasons”.

In the case within the Complainant sought the advice of a solicitor in March 2016, which was within three months of his termination. He therefore had sufficient time, and access to the appropriate advice, to ensure if matters were not resolved between himself and the Respondent to have the complaint submitted to the WRC within time. The Complainant also submitted that as he was suffering from stress and anxiety due to his working conditions he was not in a sufficient state to consider what had happened and being a Polish national he did not understand his rights. Notwithstanding this, he did get legal advice during March 2016, at which time it is obvious that he would have been advised of his rights, and within sufficient time to submit his complaint.   The Complainant’s solicitor, based on his written notice of termination of the 8th of January 2016, assumed that that was the actual date of his termination.

Having considered the evidence presented it is noted that a prudent representative, legally qualified or otherwise, would be aware of the time limits in making a complaint to the WRC, and would also have been aware of the actual termination date of the complainant based on the employment records and pay details that were known to the complainant at the time. I therefore do not find there is any reasonable cause for a delay in submitting his claim within the time limits as set out in the Act.

Accordingly, having carefully considered all the evidence presented I e find that the three complaints made, namely Complaints CA-00005737-001/002 under section 27 the Organisation of Working Time Act 1997, and CA-00005737-003 Under Section 8 of the Unfair Dismissals Act, 1977 are out of time.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

As I deem the Complaints to be out of time, and where no reasonable cause has been presented to consider an extension to 12 months, I determine that no exceptional circumstances existed within the meaning of the Act of 2015 which would form the basis for a decision extending the time for the making of the complaints from 6 months to 12. The complaint therefore fails as it is deemed to be out of time.

Dated:   25th July 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:

Time Limits, Constructive Dismissal. Organisation of Working Time Act, 1997