Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Grocery Shop

Representatives

John Curran BL

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-00030988-001

18/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030988-002

18/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030988-003

18/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00030988-004

18/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00030988-005

18/09/2019

In February 2005, the complainant commenced employment as a sales assistant in one of the respondent’s grocery shops in a suburb in north Dublin. At the hearing, the MD said that they have four shops and they employ 75 people.

When he started in 2005, the complainant was a holder of a spouse’s work permit. His wife had an employment permit to work in Ireland as a nurse. The complainant said that in 2010, when he was in the process of renewing his work permit, he was informed by an official at the Department of Justice that, to comply with the Employment Regulation Order issued by the Grocery Joint Labour Committee in force at the time, his wages must be 30 cents per hour higher than the hourly rate he was being paid. The complainant said that his employer was reluctant to increase his wages. When he went to his local Garda station to update his Garda National Immigration papers, he was informed that his work permit had expired. A member of the Gardaí then visited the shop where the complainant worked. The wages issue was resolved but the complainant’s case is that, from then on, his hours were reduced, to the point where he decided to look for another job.

In February 2017, the complainant started working as a shop assistant in a petrol station.   The respondent’s evidence is that, from then on, he informed them that he was only available to work on Sundays.   A document was submitted in evidence which sets out the complainant’s hours of work from 2006 until 2018 and this shows that in 2017 and up until week 45 in 2018, the complainant worked around six or seven hours each week. I understand that he was rostered only on Sundays and that he was paid time a half for these hours. He worked regularly on Sundays until the second week of November 2018, after which the shop manager said that he was left off the roster in error.   The manager said that he had no contact from the complainant from then on until he received a letter from his solicitor in April 2019. When he got the letter, the manager said that he phoned the complainant on May 4th, 8th and 9th but he got no reply. He then called to the petrol station where he knew the complainant worked and he tried to have a conversation with him. He said that the complainant refused to talk to him.   The manager said he asked the complainant to come to the shop for a meeting and the complainant said that he was advised not to speak to him. The complainant said that he couldn’t have a discussion with the manager because he was on his own in the shop apart from a security guard. He made no response when I asked him why he didn’t call to the shop or make any effort to speak to the manager.

At the hearing, the MD produced a copy of a letter dated August 28th 2019 which he said was sent to the complainant. Referring to the correspondence from the complainant’s solicitor, he said,

“…it would appear that a misunderstanding arose regarding your availability for work insofar as we understood that you had obtained full time employment elsewhere and, thus, were unavailable for work with us.

“If this is in fact not the case, I would be obliged if you would contact me at your earliest convenience so that suitable rostering arrangements can be made.”

The complainant said that he didn’t get this letter and the respondent produced no evidence of when it was written or posted.

CA-00030998-001: Complaint Under the Unfair Dismissals Act 1977

The complainant’s case is that by removing him from the roster in November 2018, the respondent has dismissed him and that his dismissal is discriminatory and related to the fact that he is from the Philippines.

CA-00030998-002: Complaint Under the Employment Equality Act 1998

Under this heading, Mr Curran submitted that the complainant claims that his treatment by the respondent was discriminatory because he did not receive a contract of employment, his hours were erratic and the employer did not respond to his request for employment records.

CA-00030998-003: Complaint Under the Terms of Employment (Information) Act 1994

This is a complaint regarding the failure of the respondent to give the complainant a statement of his terms and conditions of employment.

CA-00030998-004: Complaint Under the Organisation of Working Time Act 1997

This complaint was submitted under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012. However, at the hearing, Mr Curran said that it should have been submitted under the Organisation of Working Time Act 1997. In accordance with section 39 of the Organisation of Working Time Act, I have decided to amend the complaint form to show that this complaint is submitted under the Organisation of Working Time Act. The respondent did not object to this course of action. The complaint relates to the failure of the respondent to provide the complainant with regular hours of work from 2010.

CA-00030998-005: Complaint Under the Minimum Notice and Terms of Employment Act 1973

This is a complaint that the respondent dismissed the complainant without notice.

Issue 1: Was the Complainant Dismissed?

It is the complainant’s case that he was dismissed; however, Mr Curran submitted that the date of dismissal is in doubt. The complainant’s last week of employment with the respondent was week 45 of 2018, and, from the hours of work schedule that was submitted in evidence, I understand that the last day he worked for the respondent was Sunday, November 11th 2018.

At section 1 of the Unfair Dismissals Act, “dismissal” is defined as the termination by the employer of the employee’s contract, or, the termination by the employee of his contract. At section 22.13 of “Redmond on Dismissal Law,” by Dr Desmond Ryan, (© Bloomsbury 2017), Dr Ryan refers to the general understanding of dismissal:

“In general a person is dismissed when the employer informs him clearly and unequivocally that the contract is at an end or if the circumstances leave no doubt that dismissal was intended or that it may be reasonably inferred.”

In the case we are considering here, there is no evidence that the complainant was informed clearly and unequivocally that his employment was terminated. Did the circumstances in which he was left off the roster from week 46 leave him in no doubt that his dismissal was intended? It seems to me that, for the complainant to reach this conclusion, he ought to have contacted his manager in week 46 or soon afterwards, to ascertain the exact intention of the manager regarding his hours of work. I find that, by failing to contact his employer, and by failing to take any action regarding this matter until April 2019, the complainant’s case that he was dismissed is significantly undermined.

The respondent’s position is that the complainant was not dismissed. MD pointed out that he was not issued with a P45 and, as far as the company is concerned, he remains an employee. From the correspondence submitted in evidence which, I accept the complainant said he did not receive, it is apparent that he will be reinstated on the roster if he gets in touch with the shop manager.

It is my view that the complainant was not dismissed from his employment with the respondent, but that, after November 11th 2018, he relied solely on his income from his job with another employer.

Issue 2: The Complaints Have been Submitted Outside the Time Limit

These complaints were submitted to the WRC on September 18th 2019, 10 months after the complainant’s last day at work with the respondent.

Section 8(2) of the Unfair Dismissals Act 1977 provides that a claim for redress must be initiated within six months of the date of dismissal, or within 12 months, if the adjudication officer is satisfied that there was reasonable cause for the delay.   As I have concluded that the complainant was not dismissed, the question of the time limit for submitting this complaint is no longer relevant.

Section 77(5)(a) of the Employment Equality Acts sets out the time-frame within which a complaint of discrimination must be referred to the WRC:

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates, or, as the case may be, the date of its most recent occurrence.”

Paragraph (b) provides that where there is “reasonable cause,” there may be an extension of the time limit from six to 12 months.

The time limit for submitting complaints under the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997 and the Minimum Notice and Terms of Employment Act 1973 is set out at section 6 of the Workplace Relations Act 2015:

“…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.”

It is apparent therefore, that, as these complaints have been submitted outside the legal time limit of six months, an explanation of “reasonable cause” is required to explain the delay.   At the hearing, Mr Curran said that the reason for the delay submitting the complaints is because the respondent failed to engage with the solicitor’s correspondence from April 2019.    

Conclusion on the Issue of the Time Limit for Submitting a Complaint

The established test for deciding if an extension of time should be granted is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338. In this case, the test for reasonable cause for extending the time limit to 12 months was set out 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.”

It is clear therefore, that for an explanation of “reasonable cause” to succeed, the complainant must

§    Explain the delay and afford an excuse for the delay;

§    The explanation must be reasonable;

§    There must be an objective standard, applied to the circumstances of the case;

§    There must be a causal link between the circumstances and the delay;

§    He must show that, if the circumstances were not present, he would have submitted the claim.

The complainant sought the advice of a solicitor, at the latest, in April 2019. The six-month time limit within which to submit his complaints expired on May 10th 2019; however, they were not submitted until September 2019. It is my view that the explanation that the respondent’s failure to engage with the correspondence from the solicitor was cause of the delay does not meet the reasonable cause test set out in Cementation Skanska. It is not uncommon for a respondent to fail to deal with correspondence from a solicitor.   In any event, the evidence of the MD was that the store manager tried to engage on a direct basis with the complainant. For his part, the complainant said that he was advised not to talk to the manager.   With the support of his solicitor, it may have been possible to resolve the issues between the complainant and his employer simply by talking.

I find that no reasonable cause has been presented to persuade me to grant an extension of time in this case.

CA-00030998-001: Complaint Under the Unfair Dismissals Act 1977

As I have concluded that the complainant was not dismissed, I decide that this complaint is not upheld.

CA-00030998-002: Complaint Under the Employment Equality Act 1998

CA-00030998-003: Complaint Under the Terms of Employment (Information) Act 1994

CA-00030998-004: Complaint Under the Organisation of Working Time Act 1997

CA-00030998-005: Complaint Under the Minimum Notice and Terms of Employment Act 1973

I have concluded that there was no reasonable cause for these four complaints to be submitted outside the legal time limit. I decide therefore, that I have no jurisdiction to adjudicate on them.

Dismissal in doubt, complaints submitted outside the time limit