ADJ-00025466

Complainant

Respondent

Anonymised Parties

Plumber

Plumbing and Heating Company

Representatives

Michael Mulligan E.I.S.

Dominika O'Sullivan The HR Suite

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-00032350-001

20/11/2019

The Complainant was employed by the Respondent from the 15th January 2018 to the date of dismissal on the 28th January 2019. He was paid a fortnightly salary of €1360.00 gross, €1100 net based on a 40-hour week. The Complainant claims he was summarily dismissed without the benefit of proper procedures and that the dismissal was disproportionate. The Respondent claims that the complaint is statute barred because it was made outside the six-month limit from the date of dismissal, and that notwithstanding this position, that it was a fair dismissal as result of a serious breach of trust and confidence by the Complainant. The fact of dismissal is not in dispute. The complaint was received by the Workplace Relations Commission on the 20th November 2019.  

Preliminary Issue:

The Respondent submits that the complaint was lodged on the 20th November 2019 and therefore is outside of the six months limit from the date of the alleged contravention, as the Complainant’s employment with the Respondent ended on the 28th January 2019. The Respondent notes that the claim has been submitted to the Workplace Relations Commission ten months after the dismissal. It is further noted the Complainant, having received the letter outlining the grounds for dismissal on the 25th February 2019 failed to lodge the claim until end of November 2019 despite claiming he disagreed with the grounds for dismissal. The Respondent contends therefore that the claim is outside the time limit for submission of a claim and therefore is statute barred.

 Substantive Issue:

The Respondent Company is a small, family owned business providing plumbing services to public and private bodies, and to the public since 2007, employing a team of eleven. The Complainant was employed on a full-time basis from 15 January 2018 as a foreman plumber. The employment ended on the grounds of gross misconduct because of a breach of trust on 28 January 2019. The Respondent submits that the decision to dismiss the Complainant was made on the grounds of gross misconduct because of a serious breach of trust by the Complainant who, as a foreman, had a greater level of responsibility. This breach of trust resulted from two serious incidents: Firstly, where the Complainant lied to the Respondent about a job he purportedly carried out and secondly; where there was evidence that he took extended breaks of thirty minutes over the allotted time on a number of occasions. Accordingly, the Respondent submits that the dismissal was not unfair as it resulted wholly from the conduct of the employee. The Respondent submits that the Complainant was afforded the opportunity to appeal the sanction of dismissal and he failed to exhaust the internal route available to him via the Company Disciplinary Procedure.

Response to Preliminary Issue:

The Complainant responds that he was left in a state of shock and unemployed with a partner and two small children literally weeks after Christmas. He was afraid to complain for fear of repercussions from the Respondent who is well known within the Industry and local area. He was concerned had he lodged a complaint then, it could have implications for him in finding alternative Employment. As it was, he submits, it took six weeks to find alternative work, which even then was not continuous. Furthermore, he submits that he was an only child and that his mother, who cared for his father, developed a serious illness and depended on him to transport her to hospital for treatment. He contends that the stress of all this contributed to the fact that he did not bring a complaint to the Workplace Relations Commission for unfair dismissal until ten months after dismissal. He is therefore seeking an extension of time based on reasonable cause.

Substantive Issue:

The Complainant submits that he wasn’t allowed due process or fairness because of an absence of procedures in his dismissal. He submits that the Respondent managing director, Mr W, showed up on site where he was working that day and shouted various accusations about paperwork and other administrative issues. The Complainant contends that the discussion became heated where Mr W became very abusive and called him a "Mé féiner ". The Complainant contends that Mr W then went on to give him verbal notice of dismissal. He submits that he had a clean disciplinary record prior to this meeting and that he did not receive a formal letter of dismissal until the 25th February 2019, four weeks later. He asserts that this letter is a fiction and he completely refutes the contention of the Respondent that he was allowed a fair hearing and right of appeal. He submits that there was no proper investigation or conventional disciplinary hearing.

Preliminary Issue:

The Respondent maintained that the complaints were out of time in that the Complainant’s last day of work was the 28th January 2019 and the complaint was not made to the WRC until the 20th November, 10 months after the dismissal. In accordance with Section 8(2) of the Unfair Dismissals Act, (the Act):

“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,  

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General .” When making an application for an extension of time, the grounds should be carefully presented and backed by evidence. The Labour Court, in Cementation Skanska v Carroll DWT 38/2003 ,in considering whether reasonable cause exists has decided it is for the claimant to show that there were “reasons which both explain the delay and afford an excuse for the delay (and)… the explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd… The reasonable grounds must be an objective standard, applied to the facts and circumstances known to the claimant at the material time”. Accordingly, “the claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon and had those circumstances not been present, he would have initiated the claim in time”. The Court also observed that a short delay might require only a “slight explanation” whereas a long delay might require “more cogent reasons”.  In this case the Complainant cited the shock and stress of the dismissal and the fear that had he taken a claim earlier it would have affected his opportunity to seek further work within the community. He also submits that he had to tend to his mother who had serious health issues. I completely understand the stress of the Complainant in dealing with the unfortunate circumstances following dismissal. I appreciate also the extra stress and responsibility that was cast on his shoulders regarding his mother’s illness, but I cannot accept that these circumstances give a cogent, causal reason as to why he didn’t submit the claim within the six months’ time limit. If it were only a matter of a day or two over the limit, personal events of a sudden and unexpected nature might well be considered as a rational reason for delay. I cannot accept that the circumstances as described by the Complainant can logically explain a delay of four months over the time limit for submitting a complaint.  I therefore do not find there is any reasonable cause for a delay in submitting his claim within the time limits as set out in the Act. Accordingly, having carefully considered all the evidence on the preliminary point, I find that the complaint made, CA-00032350-001 under Section 8 of the Unfair Dismissals Act, 1977, is out of time. 

I deem the complaint to be out of time, where no reasonable cause has been presented to consider an extension to 12 months. The complaint therefore fails as it is deemed to be out of time.

Unfair Dismissal, Time Limits, Preliminary Issue