FULL RECOMMENDATION
SECTION 25 (2), PROTECTION OF EMPLOYEES (TEMPORARY AGENCY WORK) ACT, 2012 PARTIES : RED CHAIR RECRUITMENT LIMITED - AND - TIM WALSHE DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. ADJ-00016087.
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court. A Labour Court hearing took place on 26 September 2019. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Mr Tim Walshe (the Complainant) against the Decision of an Adjudication Officer under the Protection of Employees (Temporary Agency Work) Act 2012 (the Act). The claim was referred to the Workplace Relations Commission on 1st August 2018. The Complainant’s employment terminated with Red Chair Recruitment Limited (the Respondent) on 17thof November 2017. The Adjudication Officer held that the complaint was out of time.
Background
The Complainant commenced employment with the Respondent on the 13thMay 2016 and his last day of work was 17thNovember 2017. The Complainant states that he did not originally receive a contract and that he was not paid for any Annual Leave or Public Holiday entitlement.
Preliminary Issue – Time Limit
It is the Complainant’s submission to the Court that he had presented his claim within nine months of the contravention and within five weeks of receiving his P45. It was his submission that he believed that waiting for his P45 before lodging the claim and then lodging the claim within five weeks of receiving it met the test for reasonable cause.
It is the Respondent’s submission that the Complainant at all times knew what he had been paid for and that there was no reason for the delay in submitting the claim.
Conclusions of the Court on the Preliminary Matters
TheCourt in the case ofCementationSkanska (Formerly Kvaerner Cementation) v CarrollDetermination WTC0338 established the test for deciding if an extension should be granted for reasonable cause. 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.
The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Complainant’s last date of employment was the 17th November 2017. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place. As the Complainant’s claim was not presented to the Workplace Relations Commission until 1stAugust 2018, it was therefore three months outside of the statutory time limit. The Court finds that the reason proffered by the Complainant, while it might explain the delay, does not afford an excuse for the delay.
Determination
For all the reasons set out above, the Court finds that the complaint under the Act is statute-barred and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter.
Accordingly, the Complainant’s appeal is not allowed, and the Decision of the Adjudication Officer is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
Louise O'Donnell
TH______________________
11th October 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.