Complainant

Respondent

Anonymised Parties

Delicatessen Supervisor

Retail, Deli and Café Business

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034559-001

11/02/2020

The Complainant commenced working for the Respondent Company on 23rd of May 2015 as a delicatessen supervisor. Her employment ended upon cessation of the business of the Respondent at the Complainant’s place of work on the 6th August 2019. The Complainant’s salary was €460 gross per week; net €418. She worked 45 hours per week. The Complainant is claiming that she did not receive her statutory minimum notice upon termination of her employment.

The Complainant turned up for work on the 6th of August 2019 but found her place of work to be locked up. After contact with the Respondent she was told that there was a dispute between the Respondent and landlord of the building where she worked. This dispute   resulted in the landlord taking possession of the premises which in turn led to the Respondent company to cease  trading. She gave evidence of receipt of her redundancy sum the 14th of February 2020. The Complainant submits that she had delayed in sending her complaint to the Workplace Relation Commission because she was informed by a community information organisation that she could not submit her complaint until she had received her redundancy sum. The Complainant acknowledges that she had no knowledge of the 6 months’ time limit for submission of claim.  She is seeking an extension of the time limit on the basis that she received incorrect information from the Respondent and the community organisation.   

The Respondent did not log-in to the hearing

In deciding the Complainant’s case, I must first establish as to whether there is merit in the complainant’s application to extend the time limit for submission of her claim.

Section 41 (1) of the Workplace Relations Act, 2015 provides:

(1)    An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

The Minimum Notice and Terms of Employment Act 1973 is inserted at Part 1 of Schedule 5 and therefore comes under section 41 of the Workplace Relations Act.

Subsections (6) and (8) further provide the regulation on time limits for submission of claims and whether a time limit can be extended for a further six months:

(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.

The applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) 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.”

On the issue of a complainant pleading that she did not know what the time limits were, I refer to the Labour Court Determination in Globe Technical Services Limited v Kristin Miller UD1824. In that case the complainant argued her lack of knowledge on time limits for submitting a claim was based on the fact she was not a resident in this jurisdiction and was therefore unfamiliar with the processes.  The Court stated:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

In this instant case the Complainant pleaded lack of knowledge of time limits and submitted that she relied upon the advice of others for direction. Unfortunately, the information she relied upon was erroneous. I have sympathy for the Complainant, but unfortunately erroneous information is plainly an assertion that falls within the position of lack of knowledge. The circumstances leading to the lack of knowledge -unfamiliarity with the law, as in Globe Technical Services because the complainant was not a resident of the country, or being misinformed as in this instance, cannot be considered as underlying facts that caused the delay. 

Having considered the evidence put forward by the Complainant in applying for an extension of time, I conclude that the reason put forward does not offer an excuse for the delay.

I find that the Complainant has not established that there was reasonable cause justifying her delay in referring her complaint to the Workplace Relations Commission, therefore her complaint fails for being out of time.

I find that the Complainant has not established that there was reasonable cause justifying her delay in referring her complaint to the Workplace Relations Commission, therefore her complaint fails for being out of time.

Minimum Notice, Time Limits.