Complainant

Respondent

Anonymised Parties

An account manager

A services company.

Representatives

Grainne Quinn BL instructed by Patrick MacLynn, D.M. O'Connor and Co.

Denise Moran, Eversheds Sutherland Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021227-005

13/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021329-008

23/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021329-010

23/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00021329-012

23/08/2018

The Complainant commenced employment with the Respondent on 3rd May 2016. On 11th December 2017 his employment transferred to another company under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

This complaint was received by the Workplace Relations Commission on 10th August 2018.

Complainant’s response to Respondent Preliminary Point.

The Complainant commenced working with the Respondent on or about on 9th May 2016 in the role of Health Care Account Manager. The Health Care division that the Complainant worked in was outsourced to another Company on 11th December 2017. It was a transfer of undertakings. The Complainant was the only employee to transfer.

The within complaints under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulation SI No 131 of 2003 was lodged with the Workplace Relations Commission on 22nd August 2018 alleging numerous breaches of that Regulation.

Time Limits

The time limit for bringing a complaint under the Regulation is 6 months from the date of the alleged contravention, or where the Adjudicator is satisfied there was reasonable cause which prevented the presentation of the complaints within the period, such further period not exceeding six months, as the Adjudicator considers appropriate.

Section 41(8) of the Workplace Relations Act 2015 states

“An adjudication officer may entertain a complaint or dispute to which the 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 Labour Court in Cementation Skanska v Carroll [DWT 38/2003] stated that in considering whether “reasonable cause” exists it was for the complainant to show that there were “reasons which both explain the delay and afford an excuse for the delay”. The Court went on to say “the explanation must be reasonable, that is to say that 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 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 [or she] would have initiated the claim in time”.

Laffoy J compared “reasonable cause” to “good reason” quoting Costello J as he was then in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301

“The phrase “good reasons” is one of the 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 that 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 Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action.   Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] I.R. 181)”

This passage has been approved by the Supreme Court in De Roiste v Minister for Defence.

In Abbott Vascular v Baggott EET 1/2012 the Labour Court asked itself whether

“a reasonably diligent person, having the same state of knowledge of the material facts as the complainant, would have delayed in pursuing a claim under the Act for the reasons advanced by the Complainant”.

Here the circumstances are such that the Complainant has both a reasonable cause and reasons which explain the delay and afford an excuse for the delay. The Complainant received an email about the TUPE on 4th December 2017. There were a number of substantial changes to his terms and conditions.

On 6th December the Complainant met with his line manager to discuss issues regarding the transfer including that he had not yet received the TUPE agreement despite numerous attempts to obtain same, fuel cards, lunch allowance etc.

The Complainant did not receive the TUPE agreement until his last day with the Respondent 8th December. He began working with the other (the transferee) Company on 11th December.

Over the next two months the Complainant presumed the issues he had regarding the TUPE agreement would be resolved, that he would be given a meeting to discuss same.   However, this did not occur.   The Complainant emailed the Managing Director to organise a meeting to discuss the TUPE agreement. The Managing Director indicated they would meet the following week. This did not occur.

In May the issues regarding the TUPE agreement came to head over expenses. As a result, the Complainant attended an investigation meeting. Throughout this process, the Complainant raised his issues and believed that the issues would be resolved and the working relationship with the new Company would improve.

Unfortunately, on 15th June 2018 it became apparent this was not going to occur as the Complainant was dismissed. He then appealed his dismissal, and this was dismissed on 6th July 2018.

The Complainant then lodged the complaint with the Workplace Relations Commission on 22nd August 2018.

In Department of Finance v IMPACT, the Labour Court said that, in considering if reasonable cause exists, it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it. The Court continued:

“While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the Respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits”.

It is respectfully submitted that there is no prejudice suffered by the Respondent in respect of the delay as they were aware of the issues since at least the 6th December 2017 when the Complainant meet with his then line manager. The length of delay is very short, six months from the date of the transfer is the 11th June 2018. The Complainant lodged his complaint on 22nd August, just over two months over the initial six month threshold.   It is respectfully submitted that the Complainant is not guilty of culpable delay and that he has an excellent arguable case on the merits.

The Complainant had reasonable cause for this delay as up until his appeal was dismissed, he believed the issues with the TUPE agreement could be resolved entirely, rather than risk damaging the relationship with his new employer.   Once it became apparent this was not going to occur to the Complainant acted quickly lodging the appeal on 22nd August 2018. It is respectfully submitted that this both explains the delay and affords an excuse for the delay.

Preliminary Point.

The claims were submitted to the WRC on 10th August 2018 (CA-00021227-005) and 22nd August 2018 (CA-00021329-008, CA-00021329-010 and CA-00021329-012) eight months after the alleged contravention of the Regulations.

The date of the contravention to which the claims relate is the Transfer Date. The Claims were therefore submitted to the WRC outside of the prescribed six month time limit for submitting claims as stipulated by Section 41(6) of the Workplace Relations Act 2015 (the 2015 Act).

Section 41(6) of the 2015 Act provides

“an adjudication offer 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”

Section 41(8) of the 2015 Act empowers an Adjudication Officer to extend the initial six month period by no more than a further six months, “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 test for “reasonable cause” was set down in the case of Cementation Skanska v Carroll DWT38/2003. The Labour Court stated that:

“… 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 the excuse for the delay. The explanation must be reasonable that is to say that it must make sense, be agreeable to reason and not be irrational or absurd .. there must be a causal link between the circumstances cited and the delay and the claimant must satisfy the Court as a matter of probability that had those circumstances not been present he would have initiated the claim”.

Subsequently the Labour Court held in Salesforce.com v Leech 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 of probability, that the complaint would have presented the complaint in time were it not for the intervention of the factors relied upon as consulting reasonable cause. It is the actual delay that must be explained and justified …

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 O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, 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.

Preliminary Point.

Section 10 (6) of the Regulations reads as follows:

(6) A rights Commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstance prevented the presentation of the complaint within that period, such further period, not exceeding 6 months from the expiration of the first- mentioned period, as the rights commissioner considers reasonable.

In this instant case the transfer took place on 11th December 2017, the cognisable period therefore is from that date, 11th December 2017 until 10th June 2018. This complaint was received by the Workplace Relations Commission on 22nd August 2018, some 61 days after the expiry of the 6 month period.

At the hearing it was stated by the representative of the Complainant that over the first 2 months post transfer that the Complainant was told he would be granted a meeting with the Transferee MD to discuss matters, such a meeting did not take place.

In May the issues regarding the TUPE agreement came to a head over expenses. This presents the question of what, if any, efforts were being made by the Complainant to address any alleged anomalies that may have existed in the period mid-February to May, a period of almost three months.

The Complainant was dismissed on 15th June 2018 and the outcome of his appeal against his dismissal was made known to him on 6th July 2018.

What was he doing between 15th June and 22nd August 2018?

There is nothing exceptional in this case, there is no reasonable explanation as to why the complaint was submitted so late to the Workplace Relations Commission.

The complaint was not submitted to the WRC within the required time frame, I have decided there is no reasonable justification to extend the period of six months, the complaints are out of time therefore the complaints are not well founded.

There is no complaint for the Respondent to answer.

As the complaint is deemed to be out of time, I do not have jurisdiction to hear the complaint.

TUPE; Out of time.