AWD201

Background

The Complainant commenced employment with the Respondent in July 2016 and was placed with the Hirer on the 31^stMay 2017. The Complainant’s last day on site was the 22^ndDecember 2017 and his last day in work was 7^thJanuary 2018. The Complainant states that unlike his comparator he did not receive a “greasing allowance”. 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 although the complaint was submitted outside of the time limits there was “reasonable cause” for doing so. It was the Complainant’s submission that he had mandated his Union to advance the matter on his behalf. The Union had engaged with the Hirer in relation to same as it was the Union’s belief that based on the practises in the construction industry this was the appropriate person to engage with. The Union does not dispute that it was aware of who the Employer was, but the Hirer was the person who was around the site. The Union official believed that it was reasonable for them to exhaust the local process first. The Complainant noted the case law relating to “reasonable cause” and argued that the case law supported the fact that it was accepted that each case was considered on its own merits.

The Respondent submitted that reasonable cause had not been established. The test for reasonable cause had been set out a number of times by the Court and the failure of the Complainant’s representative to make a complaint within the relevant time period did not meet the test of “reasonable cause”. The Respondent submitted that the fact that the Complainant’s representative chose to exhaust local procedures albeit with the wrong Respondent did not prevent him from lodging a claim in a timely manner. The Respondent citied case law in support of theirsubmissions.

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.

Conclusions of the Court on the Preliminary Matters

The Legal Principles
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.

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 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.

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 on site was 22^ndDecember 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 22nd June 2018, it was outside of the statutory time limit. The Court finds that the reason proffered by the Complainant while it might explain the delay, does not 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 Respondent’s appeal is allowed, and the Decision of the Adjudication Officer is set aside.

The Court so Determines.



Signed on behalf of the Labour Court



Louise O'Donnell
DC______________________
9 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.