Complainant

Respondent

Anonymised Parties

Agency worker

Employment Agency

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00024950-003

20/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00024950-004

20/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00024950-005

20/12/2018

The Respondent submits that the instant claim was lodged on 20 December 2018 therefore the cognisable period for this claim is from 21st June 2018 to 20th December 2018. As the Claimant ceased employment on 25th May 2018, the Respondent contends that the claim has not been presented within the requisite timeframe. It is the Respondent's position that the Adjudicator does not have jurisdiction to hear these claims.

The Respondent further submits that the Complainant has failed to put forward any reasonable cause which might have caused a delay in lodging proceedings.

The Respondent relies on the precedent set by the Labour Court’s decision in Cementation Skanska v Carrroll, DWT 38/2003.

The Complainant submits that she contacted the WRC on 29th May 2018 to ask some questions and get some information.

The Complainant submits that she was aware of the six-month time limit but she contends that if she had started the process any sooner than she did it would have affected her job search. At the time she felt that the best way to move forward was to look for work while being somewhat confident that the Respondent were going to give her a fair reference.

The Complainant submits that she started a three-month contract in August which she knew was ending in November. She felt that if she submitted a complaint to the WRC that she might not get a fair reference from the Respondent when she was seeking future employment.

The Complainant submits that she called the WRC on the 19th and 20th November 2018 regarding the problems she was having with the online form.

The Complainant submits that the online form would not download on her laptop so she went to her local library to try from their computers. The Complainant contends that the form would load in the library but that the drop-downs were not working.

The Complainant submits that in the end she had to have the forms posted to her in late November 2018.

The first matter I must decide is if I have jurisdiction to hear this complaint.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

“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.”

I note that the Complainant’s employment with the Respondent ended on 24th May 2018. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted to the WRC by 23rd November 2018. In the herein case, the initiating complaint referral form was received by the WRC on 20th December 2018.

I find, therefore, that the herein complaint has been lodged outside the time limits prescribed by Section 41(6) of the Workplace Relations Act 2015.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“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.”

In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“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.”

I note the Complainant’s assertion that the delay in submitting a complaint to the WRC was due to her concerns that doing so would impact on her ability to get a fair reference from the Respondent. I also note her assertion that when she commenced the complaint lodgement process, she experienced some difficulties with the online form and that she had to request a hardcopy of the form from the WRC.

I am of the view that the position the Complainant found herself in, whereby she needed a reference from the Respondent so that she could seek further employment, was no different to the situation that many Complainants to the WRC find themselves in and, therefore, is not sufficient reason to both explain and excuse the delay.

With regard to the Complainant’s contention that there were difficulties with the WRC online submission process, I have checked with the relevant section within the WRC and they have indicated that there is no record of any problems with the online system on the 19th and 20th November 2018. In fact, they have confirmed that 84 complaint applications were received on 19th November 2018 and 34 complaint applications were received on 20th November 2018.

Even if there was a difficulty with the online system, I am of the view that the Complainant should have commenced the process in a timely manner so that any difficulty she may have experienced could have been addressed and she would have been able to submit her complaint within the six-month time limit.

Accordingly, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a complaint under the Workplace Relations Act, 2015.

Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint.

Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit.

I find that I do not have the jurisdiction to hear this case.

Time limits – no jurisdiction