Complainant

Respondent

Anonymised Parties

A Human Resources Manager

A Hotel Group

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023256-001

13/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023256-002

13/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00023256-003

13/11/2018

CA-00023256-001: Complaint under the Unfair Dismissals Act 1977

Under this heading, the complainant claims that she was “unfairly dismissed as a result of a number of Protective (sic) Disclosures I made in November 2017.” This is the same complaint, grounded on the same evidence as the complaint that was heard under ADJ-00016368.

CA-00023256-002: Complaint under the Unfair Dismissals Act 1977

In this complaint, also under the Unfair Dismissals Act, the complainant stated: “I worked different hours from January 2018.   I had a new manager. I had a salary increase. I had a fixed location. A letter or new contract was not issued to myself from Jan 2018.”

CA-00023256-003: Complaint under the Payment of Wages Act 1991

The complainant claims that she is entitled to pay in lieu of notice.

CA-00023256-001: Complaint under the Unfair Dismissals Act 1977

The evidence in respect of this complaint was heard on February 18th 2019 during the investigation into the complaint of unfair dismissal under ADJ-00016368.   It is apparent that this new complaint, submitted more than six months after the date on which the complainant was dismissed, has been lodged to ensure that a complaint is submitted against the correctly-named respondent. As I have accepted the earlier complaint for adjudication, this complaint is a duplication and I find that it is misconceived.

CA-00023256-002: Complaint under the Unfair Dismissals Act 1977

A complaint under the Unfair Dismissals Act has been adjudicated on under ADJ-00016368. It appears from the brief description of this complaint on the submission to the WRC, that it was the complainant’s intention to submit a complaint under the Terms of Employment (Information) Act 1994, although she did not address this point at the hearing. As a complaint under the Unfair Dismissals Act which has been submitted more than six months after the date on which the complainant was dismissed, this complaint is a further duplication of the earlier complaint and I find that it is misconceived.

CA-00023256-003: Complaint under the Payment of Wages Act 1991

Under this heading, the complainant claims that she is entitled to pay in lieu of notice. She was dismissed on April 10th 2018 and, the respondent stated that the complainant was not given notice or pay in lieu of notice because she was dismissed due to gross misconduct.

On August 21st 2018, the complainant submitted a complaint of unfair dismissal under ADJ-00016368. These new complaints were submitted on November 13th 2018, more than six months after the date on which she was dismissed, because of the error in the August submission when the complainant named the wrong employer.

Section 6 of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication:

“…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”

An extension of time is provided for at subsection 8 of this section:

“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.”

Explaining her reason for not submitting a complaint under the Payment of Wages Act at the same time as she submitted her first complaint in August 2018, the complainant said that she is not legally represented and she had medical problems from May 2018, when she underwent surgery and she had another operation in November 2018.

I find this explanation difficult to accept because, in one of her submissions, the complainant said that she has worked as a HR practitioner for 20 years and, therefore, she must be familiar with employment law and the association between dismissal and notice. She submitted a complaint about unfair dismissal in August 2018, but she made no reference to an entitlement to notice.

At the hearing on November 9th regarding the issue of an extension of time, Ms McFadden, for the respondent, referred to the High Court case concerning the Minister for Finance v CPSU, PSEU and Impact [2006] IEHC 145 where a decision of the Labour Court to allow an extension of time was overturned.   Here, Ms Justice Laffoy stated that “there is a considerable burden on an appellant to establish that there is reasonable cause in order to extend a time limit.” She stated that the term “reasonable cause” connotes similar factors as the expression “good cause” as set out in the rules of the superior courts and that the intention of the Oireachtas cannot have been that an extension of time would be granted without good reason. Ms Justice Laffoy went on to conclude that the knowledge of the appellant is irrelevant and that, “if an employee takes advice about his or her rights, the employee cannot rely upon that fact to excuse a failure to make a complaint to the Employment Appeals Tribunal in good time.”

In the case under consideration here, the corollary also applies, and, if the complainant decided not to take legal advice or to be represented, she cannot claim that this is a reasonable cause for submitting her complaint outside the legal time limit.

I have examined the medical evidence submitted by the complainant and I note that she had day surgery in May 2018. I also note that she was certified was unfit for work between November 1st and 19th 2018, although she submitted this set of complaints on November 13th. If the complainant was capable of submitting a set of complaints to the WRC while she was certified as unfit for work, I see no reason why she could not have done so at some point in the six months after her dismissal, even if at times, she was feeling unwell.

The complainant submitted her first complaint of unfair dismissal on time on August 21st 2018. She has not set out any reasonable cause for failing to submit a complaint regarding minimum notice at the same time. She submitted a duplicate complaint of unfair dismissal against the correctly-named employer on November 13th 2018, and she included this complaint regarding notice. My only conclusion is that this complaint under the Payment of Wages Act regarding a claim of pay in lieu of notice was submitted as an afterthought.

CA-00023256-001 and CA-00023256-002: Complaints under the Unfair Dismissals Act 1977

I have concluded that these complaints are duplicates of the complaint which has been adjudicated on under ADJ-00016368. Therefore, I have decided to dismiss these complaints as they are misconceived.

CA-00023256-003: Complaint under the Payment of Wages Act 1991

I have concluded that there was no reasonable cause for this complaint to be submitted outside the legal time limit. I decide therefore, that I have no jurisdiction to adjudicate on it.

Duplicate complaints, pay in lieu of notice, complaint outside the time limit