Complainant

Respondent

Anonymised Parties

An Army Sergeant

A Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00016895-001

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00016895-002

17/01/2018

The within complaints were submitted to the Workplace Relations Commission on 17th January 2018 and relate to allegations of Penalisation within the meaning of the Safety, Health and Welfare at Work Act, 2005. The cognisable period of the complaints is 18th July 2017 - 17th January 2018.

The complaints arise as a result of a number Redress of Wrongs (Bullying and Harassment) complaints that were submitted by the complainant against a Superior Officer on 21st December 2015, 27th May 2016 and 3rd November 2016.

The respondent contends that the complaints are out of time. The respondent stated that Section 41(6) of the Workplace Relations Act, 2015 provides that

“(6) Subject to subsection (8), 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.”

The respondent contends that the complainant has not identified any penalization, within the meaning of the Act, within a six-month period prior to the referral of the complaint to the WRC. The respondent stated that the complainant’s case is that it was the nature of how the Military investigation was conducted and not the outcome of the investigation that constituted penalization. The respondent stated that the Military investigation concluded on 20th June 2017 and the complaints submitted to the WRC on 17th January 2018 were lodged outside of the statutory six-month time frame and are therefore out of time.

The respondent noted that the complainant has sought an extension of time in relation to the complaints on the basis that although the investigation concluded on 20th June 2017, the complainant was not provided with a copy of the Investigation report until 19th December 2017.

The respondent cited the Labour Court Determination of University Hospital Waterford v McPartlan PDD194 wherein, having quoted from Cementation Skanska v Carroll DWT0338, the Labour Court stated as follows:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.

Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter or probability that the complainant would have presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified.”

The respondent contends that the complainant has not satisfied the applicable legal test in relation to the referral of his complaints. The respondent contends that the complainant was well aware of the investigation and had been consulting his Solicitor throughout. The respondent stated that the complainant has not demonstrated any facts which prevented him for referring his complaints to the WRC in time.

The respondent contends that no extension of time should be granted.

The complainant contends that the complaints are in time on the basis that the Military Police Investigation that arose as a result of the Redress of Wrongs submitted on 21st December 2015 and 27th May 2016 concluded on 20th June 2017 and was only notified to the complainant by letter dated 19th December 2017. Accordingly, the complaints submitted on 17th January 2018 are within the statutory time limits as provided for under Section 41 of the Workplace Relations Act, 2015. If necessary, the complainant is seeking an extension of time on the basis that it was in excess of six months after the conclusion of the Military Police Investigation when the outcome was notified to the complainant which prevented him lodging his complaints in time. The complainant stated that his application meets the test for “reasonable cause” in relation to the request to extend time if necessary.

Time Limits

The Applicable Law

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015 provides as follows:

“(6) Subject to subsection (8), 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.”

“(8) 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.”

Reasonable Cause

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: -

“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 complainant asserts that the Military investigation, which concluded on or about 20th June 2017 was carried out in an oppressive manner and resulted in the complainant being penalised within the meaning of the Act. At the initial hearing of this complaint, Counsel for the complainant stated that it was the oppressive manner of the investigation as opposed to the result of the process conveyed by letter on 19th December 2017 that constituted the penalisation of the complainant.

Following that line of argument, if it were the investigation process alone that allegedly constituted the penalisation of the complainant, that process concluded in June 2017 and the complaint submitted in January 2018 would be outside the six-month statutory time limit permitted by the legislation, hence the requirement to apply for an extension of time.

In further correspondence dated 6th December 2019, the complainants’ solicitor outlined that it was not only the oppressive nature of the Investigation, but also the fear and trepidation experienced by the complainant from June 2016 until December 2017 as well as the findings issued to the complainant on 19th December 2017 that constituted penalization. The complainant’s Solicitor argued that “but for” submitting the complaint, the complainant would not have been subject to a delayed, flawed and oppressive investigation process resulting in the detrimental treatment.

Extension of Time

Although it is claimed that the complaints are in time, an extension of time (if required) was also requested by the complainant’s representatives. The reason for the extension was that the complainant was not aware that the Military Investigation had concluded in June 2017 until he was notified of such on 19th December 2017 which explains and excuses the timing of the complaints submitted to the WRC, outside of the statutory six-month period, in January 2018.

The respondent does not accept that an extension of time be granted on the basis that at all times through the Military Investigation, the complainant had the benefit of Legal Advice and could have submitted a complaint to the WRC in line with statutory timeframes.

Conclusions

I have considered the submissions of both parties to this complaint and find that the contents of the letter of 19th December 2017 did not constitute penalisation within the meaning of the Act for the purposes of meeting the statutory time frame for the referral of such complaints to the WRC. The correspondence in question outlined that no charges would be brought against any party to the complaints as a result of the Military Investigation.

In relation to the request to extend time by a further six months to 18th January 2017, I note Labour Court Determination No:EDA177 Brothers of Charity Services Galway v Kieran O’Toole where the Court held that:

“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 limits provided under the Act.

Section 77 of the Act is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

I also note Labour Court Determination No: EDA1621 Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoy in relation to utilising internal grievance procedures which states:

“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.

The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.

The Complainant, in the alternative sought an extension of time. He relies on the same arguments as set out above and in addition submits that he meets the tests set out by the Court in the settled case law. In particular he submits that he has explained reason for the delay and submits that it was commensurate with the duration of the grievance procedure. He submits that he acted immediately after the outcome of the process was available to him.

The Respondent submits that the Complainant is effectively seeking to second guess his decision not to proceed through the statutory procedures available to him and that his delay no more justifies an extension of time that it did the delay itself.

For the reasons set out above the Court finds that the Complainant opted not to present a complaint under the Act and belatedly changed his mind when his chosen alternative course of action did not avail him. The Court finds, in the circumstances of this case, that the Complainant has not set out reasons such that would justify the delay in bringing proceedings under the Act. Accordingly, the Court rejects the application to extend time.”

While the above Labour Court Determinations relate to appeals under the Employment Equality Acts, 1998-2015, I am satisfied that the principles remain the same. The complainant had the benefit of legal advice throughout the process and could have submitted a complaint within the statutory time limits at any time. Therefore, the reasons put forward for the timing of the complaints to the WRC, in my view explain the delay, but do not excuse the delay. Accordingly, I find that the complainant has not satisfied the “reasonable cause” test as set out in the Labour Court Determination of Cementation Skanska and Carroll: DWT0338.In conclusion, I do not accept the reasons put forward to grant an extension of time.

Having considered the submissions of both parties, I find that the complaints are out of time and are therefore statute barred.