ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014494

Parties:

Complaint(s):

Date of Adjudication Hearing: 09/05/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

The issue of time limits was central to this case and I will consider this first as an Opening matter.

Background:

1:   Opening Issue

Employment Status / Time Limits / Legislative Standing & Applicable Acts / Adjudication Officer discretion to extend six-month limit.

1:1       Status of Employment

In related proceedings that culminated in Labour Court Appeals Decision FTD194 of April 2019 (concerning ADJ-00012221) it was determined by the Court that the Complainant was employed on a Fixed Term contract by the Respondent. This contract had commenced on the 14th June 2017.

1:2       Date of Dismissal

It was accepted as common ground that the Complainant had been dismissed on the 17th November 2017.

1:3     Time limits on Lodging of Claims under the Unfair Dismissals Act,1977 – Arguments of the Parties.

The Complainant’s claim under the Unfair Dismissals Act was received in the WRC on the 17th May 2018. This was one day outside of the six-month time limit for the initial lodging of Complainants.

It was strenuously argued by the Complainant’s Union that a mere 24-hour period had elapsed and that the Adjudication Officer should exercise his discretion to allow an extension and thereby bring the complaint into the remit of the Act.

The Respondent argued that the Complainant had at all times been professionally advised by most able Trade Union officers and the failure to lodge the complaint within the six-month time limit was not an excuse to grant an extension. It was maintained that the Unfair Dismissals complaint had arisen from observations made during the hearing of Adjudication (ADJ-00012221) and was effectively a belated effort to remedy a possibly negative outcome from that Adjudication. Case law was cited especially the headline case of Cementation Skanska v Carroll, DWT0338 where the Labour Court commented extensively on Time Limits and possible extensions. The Court noted in that Decision that

“it was for the Complainant to show that there are reasons which both explain the delay and afford an excuse for the delay.”

The Respondent argued that the Complainant had failed to offer any credible explanations for the delay. The Dismissal had been in November 2107 and more than enough time had passed before the 17th May 2018 to allow a professional Trade Union to lodge a claim. Adequate notice had been given.

1:4         Adjudicator Conclusions on Preliminary Time Limit issues.

In evidence it was clear that the Unfair Dismissals claim in this case arose out of the exchanges, as stated above, at the Hearing of the Adjudication case, on the 17th of May 2018.

Tactically the Complainant and his Union had relied, to this date, on the provisions of the Protection of Employees (Fixed-Term Work) Act ,2003

The evidence clearly pointed to a possible tactical decision by the Trade Union back in late 2017 not the pursue a claim under the Unfair Dismissals Act,1977. This decision came into question at the initial Adjudication hearing.

Following the Hearing it was decided to lodge the Unfair Dismissals claim as an additional source of possible redress. However, at this late stage it was out of time, albeit by a day.

On consideration of the evidence and the oral presentations of the Parties and the Labour Court ruling in the Cementation Skanska v Carroll, DWT0338 case I came to the view that there was merit in the Respondent submissions and agreed that the Claim was out of time. The Complainant’s Union are not novices and a tactical calculation does not amount to adequate reasons to grant an extension.

Accordingly, I cannot proceed further with this complaint as I deem it to be out of time.

I must set the claim aside as Not Well Founded.

2:        Summary of Complainant’s Case:

3:        Summary of Respondent’s Case:

4:        Findings and Conclusions:

5:        Decision:

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.

Dated:   27/06/19

Workplace Relations Commission Adjudication Officer: Michael McEntee

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