DWT209

FULL RECOMMENDATION

WTC/20/4
ADJ-00014213 CA-00019083-001

DETERMINATIONNO.DWT209

SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997

PARTIES :

LEON KINSELLA
(REPRESENTED BY TOM SMYTH AND ASSOCIATES)

- AND -

ANSON FRIEND

DIVISION :

Chairman:	Ms O'Donnell
Employer Member:	Ms Doyle
Worker Member:	Ms Treacy

SUBJECT:

1.Appeal of Adjudication Officer Decision No. ADJ-00014213

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court under the Organisation of Working Time Act, 1997 on 13 January 2020. A Labour Court hearing took place on 10 November 2020.

The following is the Court’s Determination: -

DETERMINATION:

This is an appeal by Anson Friend (the Complainant) against the Decision of an Adjudication Officer under Organisation of Working Time Act 1997 (the Act) in respect of his claim against his employer Leon Kinsella (the Respondent). The claim was referred to the Workplace Relations Commission on the 10^thMay 2018 by Mr Friend. The Complainant’s employment terminated with the Respondent on the 11th July 2017. The Adjudication Officer held that the complaint was not well founded.

Background

The Complainant was employed with the Respondent from the 9th June to the 11^thJuly 2017. A preliminary issue relating to time limits arises in this case.

Preliminary Issue – Time Limit

Position of the parties

It is the Complainant’s submission that a sequence of events prevented him from submitting his claims in time. The Complainant opted not to give evidence under oath in respect of this sequence of events but rather to make his case by way of submission. The Complainant submitted that three weeks after he left his employment he went to France as he had been promised a job. However, the job did not materialise and following an unfortunate sequence of events he found himself stranded in France without any resources until January 2018. At that point he returned to Australia and it took some time for him to recover and get himself sorted with a job. Therefore, he was not in a position until May 2018 to lodge his claims to the WRC.
The Respondent submitted that reasonable cause had not been established. The test for reasonable cause has been set out a number of times by the Court. The Complainant had managed to send emails to the Respondent during the relevant period. The Complainant has not provided any evidence of the fact that he was stranded in France for a number of months. Even if the Court were to accept that, the Complainant has not submitted any reason for the delay between his return to Australia in January 2018 and the submission of the claim in May 2018. The Respondent submitted that the Complainant has not identified any reason that would have prevented him from lodging a claim in a timely manner and cited the case ofCementationSkanska (Formerly Kvaerner Cementation) v Carroll DWT0338.

The Law

The Workplace Relations Act 2015 at section 6 states:

(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.

Discussion

The issue arising in this appeal is whether reasonable cause has been shown for an extension of time.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. 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.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should be enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court inMinister for Finance v CPSU & Ors[2007] 18 ELR 36.

The test formulated inCementationSkanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

-The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It 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 of probability, that the complaint would have been presented 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. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Complainant’s last date in work was 11^thJuly 2017. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place. As the Complainant’s claim was not presented to the Workplace Relations Commission until 10^thMay 2018, it was outside of the statutory time limit. It was the Complainant’s submission that the unfortunate sequence of events that befell him prevented him from lodging his claim in time. However, by his own submission those unfortunate events ended when he returned to Australia in January 2018, yet he waited a further four months before he lodged his claim. The Court finds that the reason proffered by the Complainant does not explain the delay, nor does it afford an excuse for the delay.

Determination

For all the reasons set out above, the Court finds that the complaint under the Act is outside the statutory time limits and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter.

Accordingly, the Complainant’s appeal fails. The Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court

	Louise O'Donnell
NJ	______________________
24 November 2020	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Noel Jordan, Court Secretary.