Complainant

Respondent

Anonymised Parties

A Manager

A Management Company

Representatives

Conor Cahill Sheehan & Company Solicitors

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-00029025-001

11/06/2019

The complainant was employed as a manager with the respondent since January 2000. He was dismissed in July 2018, following an investigation and disciplinary hearing, as a result of a complaint of an alleged assault in March 2018.

The complainant stated that he worked with the respondent for over 18 years and had an unblemished record up to the time of the assault allegation. He stated that he started in Jan 2000 as a Security Officer, was then promoted to Security Manager, prior to becoming Operations Manager in 2014. He also claimed that he was on call 24 hours a day, 365 days per year and often attended work on his days off.

He denied approaching Ms A in a stealth like manner with the aim of violence and claimed that he was never violent to anyone. Rather, he stated that he covered her eyes and lifted her up in a jovial manner.

He also stated that, although he was initially accused of assault and battery, the investigator Mr B incorrectly made reference to the Respondent’s policy on sexual harassment in correspondence sent to him. He also alleged that Mr B did not fully investigate the matter and that he failed to gather the facts in a reasonable timeframe.

The complainant was employed by the respondent as an Operations Manager. He was dismissed from his position by letter dated 23rd July 2018 on the grounds of gross misconduct, on foot of a complaint made against him by Ms A. The complaint was notified to the Respondent by a letter dated 16th April 2018 from her solicitors which stated that she was assaulted by the complainant on 14th March 2018 and on 17th March 2018.

Upon receipt of the letter from her solicitor, the respondent appointed Mr B to conduct an investigation into the allegation of assault and he wrote to the complainant by letter dated 24th April 2018. The investigation meeting took place on 11th May 2018 and Mr B wrote to the complainant that day thanking him for attending and sending him a copy of the meeting notes. The letter also enclosed a copy of the respondent’s Safety Statement “which details the Company’s Sexual Harassment Policy”. The complainant contacted Mr B that evening and pointed out that Ms A’s complaint was assault and not sexual harassment. On 14th May 2018, Mr B, apologised for his delay in replying as he was then on holidays, confirmed that the Sexual Harassment Policy had been referred to in error and acknowledged that Ms A’s complaint was of assault only. The investigation was therefore conducted in relation to Ms A’s complaint that she had been assaulted.

The investigation process culminated in Mr B issuing an investigation report dated 5th June 2018 in which it was recommended that the complaint in relation to the incident on the 17th March 2018 “be referred to a person not involved in the investigation process for a disciplinary process to be conducted”.

Mr C was appointed to conduct the disciplinary hearing and he wrote to the complainant by letter dated 19th June 2018. The disciplinary process culminated in a letter dated 23rd July 2018 from Mr C to the Complainant in which he was notified that he was dismissed on the grounds of gross misconduct, with immediate effect. Despite the letter from Mr C advising the Complainant that he had the right of appeal, he did not appeal the dismissal.

Prior to address the substantive issue, I must make a finding on a preliminary point, namely if the complainant has shown reasonable cause to allow an extension beyond the six-month time frame for making this complaint.

Specifically, section 8(2) of the Unfair Dismissals Act 1977, states that a claim for redress must be initiated “within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period”. Section 14(1) of the National Minimum Wage (Low Pay Commission) Act 2015 amended section 8(2) by extending the time to “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”.

In making a decision as to whether the complainant was prevented from initiating his claim due to reasonable cause, I have regard in the first instance to the Labour Court decision in the matter of Salesforce.com v Leech EDA1615, which states, inter alia, that:

“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 been presented the complaint 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.”

Given that the complainant stated that he did not consider referring the claim to the WRC because of the delay in the garda investigation into the matter, I am satisfied that he subjectively believed that he or she was justified in delaying in doing so.

While the complainant also alleged that he was suffering from stress during the period after his dismissal, there was no medical evidence produced to support this. Moreover, he repeatedly said that he delayed making the claim until he was cleared following the garda investigation which would suggest that he consciously made the decision, notwithstanding what stress he was apparently under.

In light of the above, I do not consider that the complainant has shown reasonable cause to extend the time period from six month to twelve months and therefore do not have jurisdiction to hear this claim.

Given that the complaint was not initiated during the six-month period after the dismissal and that the complainant did not show reasonable cause to extend the period to twelve months, I find that I do not have jurisdiction to hear this claim.