FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : SSE RENEWABLES (IRELAND) LIMITED TRADING AS SSE RENEWABLES (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - FINBAR TYMON (REPRESENTED BY DEREK DUNNE B.L., INSTRUCTED BY NEIL J BREHENY & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Treacy |
1. An appeal of an Adjudication Officer's Decision Nos.ADJ-00013272 and CA-00017427-001.
BACKGROUND:
2. The Complainant appealed the decision of the Adjudication Officer to the Labour Court in accordance with Section 8 (A) of the Unfair Dismissals Act 1977 to 2015 on the 24 December 2018. A Labour Court hearing took place on the 12 September 2019. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Mr Finbar Tymon against the Decision of an Adjudication Officer ADJ-00013272 under the Unfair Dismissals Acts 1977– 2015 (“the Acts”). The Complainant claimed to have been constructively dismissed by his former employer, SSE Renewables (Ireland) Limited t/a SSE Renewables.
The Adjudication Officer considered an application for an extension of time made under the provisions of Section 41(8) of the Workplace Relations Act 2015. The application was refused and consequently he found that the Complainant’s claim was out of time.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Finbar Tymon will be referred to as “the Complainant” and SSE Renewables (Ireland) Limited t/a SSE Renewables will be referred to as “the Respondent”.
The Complainant submitted his claim under the Acts to the Workplace Relations Commission on 13thFebruary 2018.
Background
The Complainant alleged that he was constructively dismissed by the Respondent on 19April 2107. Notwithstanding that there was a dispute between the parties as to whether or not the Complainant was engaged by the Respondent as an independent contractor pursuant to a contract for services or as an employee under a contract of service, a second preliminary issue was raised concerning the timing of his claim under the Acts.
The Court will at the outset deal with the latter issue in isolation from the former issue in the first instance as it is discrete and can be considered by reference to the facts presented, which may dispose of the case, as it relates to the jurisdiction of the Court.
Preliminary Issue – Time Limit and Application for an Extension of Time
Mr Conor O’Gorman, Ibec, on behalf of the Respondent, submitted that the complaint herein was not properly before the Adjudication Officer and is not now properly before the Court as it was out of time. In support of this submission it was pointed out that the complaint was lodged with the Workplace Relations Commission on 13thFebruary 2018 whereas the alleged constructive dismissal took place on 19thApril 2107. Thus, it was submitted, the complaint was out of time.
Mr Derek Dunne, B.L., instructed by Neil J Breheny & Co., Solicitors, on behalf of the Respondent, accepted that the complaint of constructive dismissal was presented outside the six month time limit, however, he claimed that there were reasonable grounds for an extension of time as provided for under Section 41(8) of the Workplace Relations Act 2015. Mr Dunne alleged that the Complainant was constructively dismissed by the Respondent due to the Respondent’s refusal to pay outstanding Invoices.
Mr Dunne 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.
Mr O’Gorman refuted these assertions. He submitted that the Complainant cannot rely on the explanation that he did not lodge his complaint of alleged constructive dismissal in time as he was engaging with the Respondent on the matter of the outstanding Invoices. He made this point on the basis that the Complainant continued to engage with Respondent on the matter even after he had eventually lodged his complaint and that he continued to do so until 8thMarch 2018 when the matter of the outstanding Invoices was resolved. Mr O’Gorman contended that there was no explanation as to why he did not lodge his complain in time, in circumstances where he was aware of the six-month time limit. Mr O'Gorman similarly relied upon theCementationcase in support of his arguments and contended that there were nocogent reasonsfor the delay.
Conclusions of the Court
The crux of the Complainant’s case appears to surround the fact that he was seeking to have outstanding Invoices paid and, due to his frustration when the Respondent refused to pay them, he lodged a claim of alleged constructive dismissal while he was processing his grievances over the outstanding payments. That claim was not presented in time. Having examined the matter the Court is not satisfied that a nexus has been established between both these issues and, in any event, 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.”
Similarly, inBusiness Mobile Security Ltd t/a Senaca Limited v John McEvoyEDA 1621, the Court held that the claim was statute-barred where:-
“There was a delay in processing the grievance which lasted for more than six months. In the meantime, the Complainant was out of work on sick leave. Again, he decided to allow that procedure take its course while time was running under the Act. When the matter was eventually brought to a conclusion under the grievance procedure the time limit for bringing a complaint under the Act had expired……
The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”
In line with its decision inBusiness Mobile Security Ltd t/a Senaca Limitedthe Court does not accept that the internal grievance process can take its course and operate to extend the period for submitting a claim. It is accepted that the Complainant was advised by his Solicitor in writing on 12th April 2017 and 27th July 2017 that the time limit for presenting the complaint was six months. In such circumstances, the Court cannot accept that there were reasonable grounds for the delay in doing so.Therefore, the Court must find that the within claim was out of time when it was presented to the Workplace Relations Commission on 13thFebruary 2018.
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 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
DC______________________
7 October 2019Caroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.