UDD1969

This is an appeal by Ms Geraldine Higgins (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00015399, dated 16 January 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer declined jurisdiction under the Act having determined that the incorrect Respondent was impleaded and that the Complainant had been employed at all material times by the Embassy of Ireland in Washington DC pursuant to a contract of employment governed by the law of the District of Columbia. The Adjudication Officer also found that the Complainant had failed to present her complaint under the Act within the statutory limitation period and had not advanced any grounds that constituted reasonable cause justifying her delay in doing so. The Complainant’s Notice of Appeal was received by the Court on 26 February 2019. The Court heard the appeal in Dublin on 3 October 2019

Factual Matrix

By letter dated 26 June 2007, the Complainant was offered employment as an Administrative Assistant at the Embassy of Ireland in Washington DC. The Complainant formally accepted that offer on 28 June 2007. Prior to attending for interview for this position, the Complainant had won a Donnelly Visa and was legally entitled to reside and work in the United States of America. Pursuant to her contract of employment, the Complainant’s place of work at all material times was the Embassy in Washington DC. She was paid in local currency and she bore responsibility for the payment of any and all taxation arising under local law on her earnings. The Complainant’s appointment was to a temporary unestablished position at the Embassy. Her contract expressly states that the appointment “carries no entitlement to established status in the Irish Civil Service” and was subject to termination “at any time by either side in accordance with the Minimum Notice under Local Employment Law”.

By letter dated 7 July 2017, the then Deputy Head of Mission at the Embassy in Washington informed the Complainant that her contract with the Embassy would terminate on 28 July 2017 as the Embassy – for cost-saving reasons – had decided to suppress the post of receptionist. On 7 November 2017, the Deputy chief of Mission and the Complainant jointly executed a General Release and Agreement expressly governed by “the statutes and common law of the District of Columbia”. As per the terms of that Agreement, the Complainant was paid and accepted a severance package. The Agreement provided that the Complainant’s “separation date from the Embassy” was 28 July 2017.

Some eleven months subsequent to her agreed separation date, the Complainant’s submitted a complaint under the Act to the Workplace Relations Commission. Her initiating complaint form was received by the Commission on 5 July 2018.

Preliminary Objections to Jurisdiction

Ms Guinness BL for the Respondent submits that the Court should decline jurisdiction to determine the appeal for the following reasons:

• (a) The initiating complaint was received out of time and the Complainant has failed to advance any reason for her delay that constitutes ‘reasonable cause’ justifying the delay as interpreted by the Court;

  (b) The Complainant was employed at all material times by the Embassy of Ireland in Washington, DC; at no time was she an employee of the Respondent named in the within proceedings;

  (c) Section 2(3)(a) of the Act operates to exclude the within claim/appeal from the Court’s jurisdiction because the complainant ordinarily worked outside the State in the performance of her contract and was not ordinarily domiciled in the State during the term of that contract;

  (d) The Complainant had signed a General Release and Agreement pursuant to which she had received a generous severance package in consideration for which she expressly released “the Embassy of Ireland, its officials, employees, agents, insurers and related entities, including the Department of Foreign Affairs of Ireland and its diplomats, officials, employees, agents and insurers (collectively “the Embassy”) from any all liability, damages or causes of action, whether known or unknown, relating to [her] employment with the Embassy or the termination of that employment, or any other acts or events involving the Embassy to the date of this General Release and Agreement …”.

The Complainant told the Court that she was in receipt of professional legal advice prior to signing the General Release and Agreement on 7 November 2017. Further to that advice she prefaced her signature to the Agreement with the letters “vc”. The Complainant informed the Court that those letters are an abbreviation for a Latin term,vi coactus,which apparently translates as "having been forced" or "having been compelled". The Complainant submits that she had received legal advice to the effect that the Agreement would have no legal force if she placed the aforementioned abbreviation immediately before her signature to the Agreement. When asked by the Court whether or not she had received and retained the separation package detailed in the Agreement, the Complainant confirmed that she had both accepted and retained it. The Complainant did not submit any authorities that confirmed that the term ‘vi coactus’ had any established meaning in Irish law (or indeed the law in any other common law jurisdiction). The term does not appear in the online text ofMurdoch and Hunt’s Encyclopedia of Irish Law.Similarly, a search ofwww.westlaw.ieyields not a single example of that term being used in that database of Irish legal sources.

As for the matter of the delay in initiating her proceedings under the Act, the Complainant told the Court that it could be attributed to two matters. Firstly, her own physical and mental health deteriorated as a consequence of the shoddy manner – as she perceived it - in which her service at the Embassy in Washington DC came to an end. Furthermore, following her return to Ireland she assumed the role of carer for an elderly parent. This contributed further to her physical and mental exhaustion, she says.

Complaint out of Time

Section 8(2) of the Act provides:

• “(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—
  • (a) within the period of 6 months beginning on the date of the relevant dismissal, or

    (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

• “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 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.”

In the instant appeal, the Court has given very careful consideration to the Complainant’s submissions in relation to the State of her health following the cessation of her employment with the Embassy in Washington DC. The Court has also heard the Complainant in relation to the caring duties that she assumed on her subsequent return to Ireland. The plain facts of the matter are, however, her employed terminated on 28 July 2017; she did not refer her complaint under the Act until 5 July 2018, some eleven months later. Having regard to the Court’s jurisprudence, such a delay requires very ‘cogent reasons’. Mere assertions of ill-health – unsupported by medical certification – and references to the assumption of caring responsibilities do not constitute cogent reasons that explain and justify the lengthy delay that occurred in this case.

Furthermore, it appear to the Court that – at least on the face of it – the Complainant, having had the benefit of legal advice (on her own evidence) entered into a legally binding General Release and Agreement with her former employer, pursuant to which she accepted and retained valuable consideration in return for waiving her right to take proceedings arising, inter alia, from the termination of her contract of employment. In all the circumstances, therefore, it does not appear to the Court that the Complainant has a good arguable case under the Act.

On the basis of the foregoing, the Court finds that the complaint under the Act is out of time and the Complainant has failed to demonstrate reasonable cause that excuses and justifies her delay in referring her complaint within time. The Court, therefore, dismisses the appeal and upholds the decision of the Adjudication Officer.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
DC______________________
19 November 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.