ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00019242

Parties:

Complaint(s):

Date of Adjudication Hearing:  29/08/2019

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Background:

1:1      Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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 hearing of the case was delayed due to a number of postponements at the request of the Parties.

1:2      Opening Issue: Time Limits / Jurisdiction of Adjudication Officer.

In this case the issue of applicable time limits arose as a preliminary issue.

The Complainant’s employment ended on the 20^th July 2018. The Complaint form was received by the WRC on the 20^th January 2019. The Secretariat of the WRC wrote to the Complainnat on the 21^st January 2019 drawing her attention to the statutory time limits.

A Six Months’ time limit applies, subject to extension to 12 months at Adjudication Officer decision on “reasonable cause”, to the lodging of complaints.

Section 8(10 (b) refers.

 (1B) Subsection (14) of section 41 of the Act of 2015 applies to a decision of an adjudication officer under subsection (1) as it applies to a decision of an adjudication officer under that section subject to the modification that the words ‘ subsection (1) of section 8 of the Act of 1977 ’ shall be substituted for the words ‘ this section ’ .

(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.

The key opening decision for Adjudication is whether “Reasonable Cause” can be applied in this case.

The Secretariat of the WRC wrote to the Complainnat on the 21^st January 2019 drawing her attention to the statutory time limits.

In essence the Complainant is one day outside the time limits.

This poses a difficult issue, but the Legal precedents are illustrating.

Adjudication Decision Adj-00011502 is worth quoting

In Grove After School Care (Management Company) and O’Sullivan (PW 18/3, 2nd May 2018) the Labour Court referred to the High Court case of O’Donnell and O’Donnell v Dun Laoghaire Corporation [1991] IRLM 30 with its conclusion that the corresponding ‘good reasons’ test in judicial review cases must be an objective test, whereby the onus is on the plaintiff to show that there are reasons which both explain the delay and afford a justifiable excuse for it. The Court also observed that the approach taken by the Labour Court in Cementation Skanska and subsequent cases was approved by the High Court in Minister for Finance v CPSU and Others [2007] 18 ELR 36.

In summary the test has been clarified as follows:

The applicant must identify the reason for the delay and establish that it provides a justifiable excuse for it.

The onus is also on the applicant to establish a ‘causal connection’ between the reason provided for the delay and the failure to present the complaint on time. In effect the reason provided must be the actual reason for the delay.

I must be satisfied, as a matter of probability, that the complaint would have been presented on time were it not for the intervention of the factors relied upon as constituting reasonable cause.

Lastly, although the test imposes a relatively low level of reasonableness, there is some limitation on the range of issues that can be considered.

The Labour Court went on to state in the Grove case that for an extension of time to be granted, a Claimant must demonstrate that they were impeded, prevented or unable to commence proceedings within the 6-month statutory time limit.”

In the case in hand I have to decide whether or not the Complainant was “impeded, prevented or unable to commence proceedings within the six-month time limit.”

The Complainnat gave considerable oral evidence at the Hearing. Her Representative in her application referred to her as “An extremely nervous individual and the process continues to cause considerable stress and anxiety”. This was the main explanation offered for the delay.

Reviewing the considerable Written evidence of extensive exchanges between the Parties in the weeks coming up to the ending of employment I had to come to the view that she was capable and articulate in both Oral and Verbal modes.

I could not see any good factors to “impede, prevent or render her unable to commence proceedings”.

Accordingly, I have to find that the Complaint as per Section 8 of the Unfair Dismissals Act,1977 is Out of Time.

I have no Jurisdiction to proceed and the complaint must be deemed 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.

The Complaint is out of time and as such is deemed to Not Well Founded.

Dated:   10^th October 2019

Workplace Relations Commission Adjudication Officer:  Michael McEntee