FULL RECOMMENDATION
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005 PARTIES : TESCO IRELAND LIMITED TESCO EXPRESS (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - ALI RAZA KHAN DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No:ADJ-00009650 CA-00008522-002
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 26 January 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. A Labour Court hearing took place on 30 October 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Tesco Ireland Limited against the Decision of an Adjudication Officer Adj-000099650, CA-00008522-002 under the Minimum Notice & Terms of Employment Act 1973 (“the Act”) where Mr. Ali Raza Khan claimed that he did not receive his statutory entitlement to notice when his employment was terminated on 22nd March 2016 by his former employer. The Adjudication Officer held that the claim was well founded and awarded him two weeks’ pay in lieu of notice, amounting to €709.80.
The Complainant referred his complaint under the Acts to the Workplace Relations Commission on 1stDecember 2016. The claim was out of time and an application was made for an extension of time. The Adjudication Officer granted the extension of time and heard the case. The Respondent/Appellant failed to attend the hearing for reasons which were explained to the Court. The Adjudication Officer’s Decision was issued on 18thDecember 2017. The Respondent’s appeal was received by the Court on 26thJanuary 2018.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. Ali Raza Khan will be referred to as “the Complainant” and Tesco Ireland Limited will be referred to as “the Respondent”.
Preliminary Issue - Time Limits and Application for an Extension of Time
Ms Ursula Sherlock, Ibec, on behalf of the Respondent, raised a preliminary issue that the Complainant’s claim was referred to the Workplace Relations Commission outside the statutory time limit.
The Complainant, who was unrepresented, claimed that there were reasonable grounds for an extension of time as provided for under Section 41(8) of the Workplace Relations Act 2015.
In the interest of efficiency of process, the Court proposed to consider this issue as a preliminary matter, as it had the potential to be determinative of the appeal in its entirety. The parties agreed to proceed accordingly.
Summary of the Respondent’s Position on the Preliminary Issue
In support of this submission it was pointed out that the complaint was lodged with the Workplace Relations Commission on 1stDecember 2016, whereas his dismissal took place on 22ndMarch 2016, more than eight months later and outside the cognisable time period covered by Section 41 of the Workplace Relations Act, 2015. On that basis the Respondent contended that the complaint was out of time.
With regard to the Complainant’s application for an extension of time, Ms Sherlock submitted that there were no reasonable grounds for such an extension.
Ms. Sherlock placed reliance onCementationSkanska (Formerly Kvaerner Cementation) v CarrollDetermination WTC0338 as the established test for deciding if an extension should be granted for reasonable cause formulated by this Court. 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.
Ms. Sherlock referred to the Complainant’s grounds for his application to extend time where he contended that his claim was late due to his appeal of the decision to dismiss him not taking place until after his return from Pakistan, where he went as his brother died. He was in Pakistan from April to 31st August 2016. On his return from Pakistan he was then hospitalised for the first week in September 2016. She said that he was informed of the outcome of his appeal on 30th September 2016. He sought legal advice on 30th November 2016 and his complaint was submitted on 1st December 2016. In response, Ms. Sherlock stated that throughout the disciplinary and the appeal process the Complaintant was accompanied and represented at meetings by a full-time union official, and received expert advice, as long before the date of his dismissal he said he had taken legal advice. Such an experienced advocate would understand the time limit restrictions imposed by statute.
Summary of the Complainant’s Case on the Preliminary Issue
At the commencement of the hearing, the Court provided the Complainant with the opportunity to read the Respondent’s submission as he had not seen it before. While it had been forwarded to his legal representative at the same time as it was presented to the Court in accordance with the Court’s rules, the Complainant stated that he was no longer legally represented and therefore had not had sight of it before.
The Complainant did not supply the Court with a written submission, however, he stated that he wished to present his case orally. The Court explained the procedures of the Court and informed him that it would provide him with assistance if required. The Respondent had no objection.
The Complainant submitted that the reasons for his late referral of a claim under the Acts was due to a number of factors. He said that he had a serious medical condition, his brother had died, and his mother was ill, both of which required him to travel to Pakistan.
Conclusions of the Court
The main reason submitted by the Complainant for the delay in referring his claim under the Acts was his medical condition. In his evidence to the Court he accepted that his medical condition existed some time before his dismissal and is an ongoing condition. The Respondent produced a medical report from the Complainant’s Doctor dated 21st January 2016, which stated that that he was fit and well and was compliant with his medication. While the Complainant clearly has a serious medical condition, the Court is not satisfied that it prevented him from referring the claim within the relevant time period as it did not prevent him from lodging his claim when he eventually did so in December 2016.
The Court notes that the Complainant was in Pakistan for a number of months after his dismissal, until he returned on 31stAugust 2016, at which point there were three weeks remaining to refer his complaint to the WRC. In any event it was possible to submit his claim online.
Throughout the period of his disciplinary investigation, dismissal and appeal the Complainant was represented by his trade union and while the time period in question had expired by the time he sought legal advice, no grounds for not seeking such advice before 30thNovember 2016 were submitted by the Complainant. He was legally represented up to the period when his claim was heard by an Adjudication Officer.
While at the Court hearing of the appeal, the Complainant did not ground his application for an extension of time on the assertion that he could not do so as he was progressing an internal appeal, this reason was submitted at the hearing before the Adjudication Officer when he was legally represented, and the Respondent has responded to it in its submission to the Court.
Having examined the matter the Court does not accept that the processing of an internal grievance can be considered as a cogent reason which prevented the lodging of a complaint under the Acts in time. The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. The Court addressed this issue inBrothers of Charity Services Galway v Kieran O’Toole[EDA 177] where it held:-
- “The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”
In all the circumstances and having considered each of the grounds put forward for the delay in submitting his claim under the Acts, the Court does not accept that there were reasonable grounds why it was not presented in time.
Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission on 1st December 2016.
Determination
For all the reasons set out above, the Court finds that the complaint under the Acts is statute-barred and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter.
Accordingly, the Respondent’s appeal is allowed, and the Decision of the Adjudication Officer is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
MK______________________
1 November 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.