UDD1935

This is an appeal by Mr Joseph Tom Murray (‘the Complainant’) of an Adjudication Officer’s decision (ADJ-00011502, dated 8 January 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer declined jurisdiction to deal with the complaint having found that it had not been not presented within time. The Adjudication Officer also held that the Complainant’s application to extend time for reasonable cause was not well-founded. Notice of the Complainant’s appeal was received by the Court on 21 February 2019. The Court heard the appeal in Dublin on 3 July 2019 during which it took sworn evidence from Ms Violet Behan, Solicitor for the Complainant.

Preliminary Issue

Ms Behan told the Court that she had been advising the Complainant in relation to a number of employment-related matters from May 2016 onwards. On 24 May 2016, Ms Behan completed and submitted a complaint to the Workplace Relations Commission (‘the WRC’) under the Payment of Wages Act 1991 using the WRC on-line complaint form. Her evidence was that she inadvertently submitted the same complaint three or four times as she didn’t receive an automated email confirming receipt of the complaint. Ultimately, this matter was resolved when Ms Behan’s office was later contacted by a member of staff at the WRC to confirm that the duplicated complaints had been consolidated into one. Ms Behan was unable to state exactly when she received this telephone call but said she believed that it was on some date prior to Christmas 2016.

It appears that the Complainant’s employment with Elsatrans Limited (‘the Respondent’) terminated on or about 24 November 2016. Ms Behan’s evidence is that she completed a second WRC complaint form on the Complainant’s behalf on 10 January 2017 in order to initiate a claim under the Act. She then, she says, consulted with Counsel (not Mr Slein BL) in relation to the complaint form as drafted before submitting it to the WRC using the on-line portal on 12 January 2017. Ms Behan was adamant that she remembers submitting the completed form on that date although she was unable to produce any evidence of having done so. Again, Ms Behan’s evidence is that no automatic acknowledgment issued from the WRC to confirm that her client’s complaint under the Act had been received.

Counsel for the Complainant exhibited an email sent by Ms Behan to her secretary on 7 February 2017 asking her to seek confirmation from the WRC that it had received the complaint under the Act as lodged on 12 January 2017. In that email, Ms Behan referred to the earlier complaint lodged on behalf of the Complainant under the Payment of Wages Act 1991 and asked her secretary to ensure that there was no confusion between the different complaints. On 9 February 2017, the secretary emailed Ms Behan as follows:

• “they (sic) have confirmed they have received this under reference number ADJ00003367 and their CA number is 00004876

  you’ll (sic) get a letter from them about a hearing date.”

Nevertheless, only two days after having written to the WRC, Ms Behan emailed her secretary from her personal email address on 29 June 2017 asking the secretary to ring the WRC the following day to ask why Ms Behan’s office had not received “a date for hearing”. The Court notes that neither the letter of 27 June 2017 nor the email of 29 June 2017 makes specific reference to a complaint under the Act. An email dated 30 June 2017 from the secretary to Ms Behan states that the secretary was unable to contact the WRC by telephone on the previous day as she had been placed on hold for an extended period and had, therefore, sent a letter marked ‘urgent’ for the attention of the WRC office in Carlow. A file copy of this letter was exhibited to the Court. It references the same ADJ and CA numbers referenced in the letter of 27 June 2017 but makes no mention of a complaint under the Act; it refers only to “our client’s complaint”. In any event, Ms Behan told the Court that she received no reply from the WRC on this occasion either.

Ms Behan appears to have taken no further action in that matter until she sent an email to the WRC on 3 October 2017, quoting CA-00004876 and referring to “our application in the above matter lodged on the 12the January last”. Yet again, according to Ms Behan’s evidence, no reply was forthcoming from the WRC in response to her email.

However, on 13 October 2017, a member of WRC staff contacted Ms Behan’s office by email regarding ADJ-00003367 and attaching correspondence from the Respondent’s representatives, Peninsula Business Services. The latter was a query in the following terms:

• “Dear Sirs,

  I refer to the above and confirm receipt of a claim under the Payment of Wages Act only. Can you confirm whether there are any further claims by Mr Murray against the Respondent under any other Acts?”

Counsel for the Complainant submits that Ms Behan acted diligently at all times with regard to initiating her client’s claim under the Act and that she believes that she did submit the complaint on 12 January 2017 i.e. well within the limitation period provided for in the Act. He further submits that when she discovered that - through no inadvertence on her part -the WRC had no record of the original complaint form she acted with haste to submit a second form. In the circumstances, he submits, the Court should find that there was reasonable cause for the delay in lodging the complaint and that (what he characterises as) the “low threshold for reasonable cause” identified by the Court inCementation Skanska v CarrollDWT0338 has been met.

Mr Treanor BL for the Respondent submits that the Complainant’s Solicitor failed to produce any evidence to support her belief that she had, in fact, submitted a complaint under the Act to the WRC on 12 January 2017 as alleged. He further submits that, on the facts, there was no reasonable cause for the Complainant’s delay until 26 October 2016 in submitting a ‘second’ complaint. He made application to the Court to dismiss the appeal under the Act.

Determination

Having given very careful consideration to Ms Behan’s evidence and the supporting documentation opened to the Court, the Court finds that while Ms Behan may genuinely believe that she submitted a complaint under the Act on her client’s behalf on 12 January 2017, there is nothing before the Court that would permit it to find, on the balance of probabilities, that she, in fact, made any such application on that date.

The Court was particularly struck by Ms Behan’s apparent inaction in relation to her client’s complaint between 27 June 2017 (when she sent a letter to the WRC to which she says she received no reply) and 3 October 2017. That was a lengthy period of time during which she allowed matters to rest in circumstances where it ought to have been very clear to Ms Behan that something was amiss with the complaint she believed she had initiated some months earlier. Ultimately, however, Ms Behan waited until 26 October 2017 to lodge a ‘second’ complaint under the Act. As of that date, the complaint was made some five months outside the limitation period provided for in the Act.

In this regard, the Court inCementation Skanska v CarrollDWT0338 held:

• “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.”

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
11 July 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.