ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00024250
Parties:
| Complainant | Respondent |
Anonymised Parties | Building Services Manager | Enterprise Centre |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00030969-001 | 18/09/2019 |
Date of Adjudication Hearing: 03/12/2019
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant worked as a Building Services Manager with the Respondent organisation from 21st July 2003 until 29th November 2017. There is a dispute between the parties as to the employment status of the Complainant - the Complaint asserts that he was an employee of the Respondent whereas the Respondent contends that he was a contractor. The Respondent has also raised a preliminary issue regarding the time limit for the submission of the herein complaint. |
Preliminary Issue: Time Limits
Summary of Complainant’s Case:
The Complainant submits that the Respondent served him with an employment termination notice on 2nd August 2017. The Complainant submits that, in the employment termination notice, the Respondent mis-categorised him as a sub-contractor and suggested that it was entitled to terminate his contract subject to 4 months’ notice. The Complainant submits that, over the following months, he protested both verbally and in writing and tried to engage with the Respondent to establish what was to happen at the end of the notice period. The Complainant submits that he received no meaningful response to his communications. In an email to the Chairman of the Board of Directors of the Respondent organisation dated 1st November 2017, the Complainant indicated that he intended to seek a determination from the SCOPE section of the Department of Employment Affairs and Social Protection (DEASP) as to the insurability of his employment. The Complainant submits that on 2nd November 2017, while still in employment, he applied to the SCOPE section of DEASP for a determination on the status of his employment. The Complainant submits that after a lengthy process extending to 85 weeks, on 17th June 2019 he received an Appeals Officer decision which confirmed his status as having been an employee of the Respondent since July 2003. The Complainant submits that on 16th October 2019 a review of the Appeals Officer decision was requested by the Respondent’s solicitors. The Complainant submits that on 18th November 2019 he received the decision of the Chief Appeals Officer upholding the previous decision of the Appeals Officer. The Complainant submits that he is entitled to a redundancy payment by virtue of being an employee of the Respondent since 21st July 2003 and having this decision confirmed by the Chief Appeals Officer of DEASP. The Complainant is seeking an extension to the time limit for submitting a complaint under the Redundancy Payment Acts due to the lengthy engagement he has had with DEASP since 1st November 2017 regarding a determination on the status of his employment. |
Summary of Respondent’s Case:
The Respondent submits that the herein complaint was brought some 20 months after the Respondent ended its arrangement with the Complainant’s company which is far outside the 52 week period provided for under the Redundancy Payments Act. The Respondent submits that the issue for decision is whether the Complainant has put forward any reasonable cause for the delay. It is the submission of the Respondent that no such reasonable cause has been put forward. The Respondent submits that the determination of the Social Welfare Appeals office has no bearing on whether or not the Complainant was an employee under the Redundancy Payments Act. And, therefore, there is absolutely no reason for the Complainant’s failure to submit a complaint to the WRC in December 2017 at the same time as he applied to DEASP for a determination in respect of the insurability of his employment. The Respondent submits, therefore, that awaiting the outcome of the Social Welfare appeals process does not constitute reasonable cause for failing to bring the herein claim within time. The Respondent relies on the High Court judgement in The National Museum of Ireland v Minister for Social Protection [2016] IEHC 135 to support its contention that a decision under the Social Welfare Acts is not binding in relation to a claim under employment rights legislation that is brought before the Workplace Relations Commission. |
Findings and Conclusions:
The first matter I must decide is if I have jurisdiction to hear this complaint. In making my decision, I must take account of both the relevant legislation and the legal precedent in this area. The time limits for submitting claims to the Workplace Relations Commission under the Redundancy Payments Act, 1967 are set out in Section 24 of that Act which provides that: “(1) Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment– (a) the payment has been agreed and paid, or (b) the employee has made a claim for the payment by notice in writing given to the employer, or (c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the [Director General] under section 39. (2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum. I note that the Complainant’s employment with the Respondent ended on 29th November 2017. Therefore, under section 24(1) of the Redundancy Payments Act, 1967, the initiating complaint referral form must be submitted to the WRC by 28th November 2018. In the herein case, the initiating complaint referral form was received by the WRC on 18th September 2019. I find, therefore, that the herein complaint has been lodged outside the time limits prescribed by 24(1) of the Redundancy Payments Act, 1967. Section 24(2A) of the Redundancy Payments Act, 1967provides that if a complaint is not submitted within 52 weeks of beginning on the date of dismissal or the date of termination of employment, an extension may be granted by an Adjudication Officer up to a maximum time limit of 104 weeks where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions: “Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled. In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay. The Labour Court has set out the test in 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.” I note the Complainant’s assertion that the delay in submitting a complaint to the WRC was due to the fact that he was awaiting the outcome to his application, and subsequent appeal. to DEASP regarding his employment status. In my deliberations as to whether or not this constitutes reasonable cause, I am guided by the High Court judgement in The National Museum of Ireland v Minister for Social Protection [2016] IEHC 135 where Murphy J held that: “The Organisation of Working Time Act 1997, the Protection of Employees (Fixed Term Work) Act 2003 and the Social Welfare Consolidation Act have all provided for different statutory mechanisms to resolve what are in essence, different issues arising from an employer-employee relationship. Each of those Acts provides for an ultimate appeal to the High Court on a point of law. None of the Acts provides that the decision of one decision making body is binding on the other. The legislature in its wisdom has seen fit to set up different statutory schemes to deal with different employment issues. Undoubtedly it would be far more efficient to have one body charged with the resolution of all issues relating to employment status. This however is a matter for the legislature and not the courts and as matters stand, employees enjoy rights to seek redress simultaneously from the Rights Commissioner and the Department of Social Welfare depending on the nature of their complaint.” Following the reasoning of Murphy J, I find that the Complainant was not precluded from submitting a complaint to the WRC in parallel to his application to DEASP for a determination of his employment status. Accordingly, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a complaint under the Workplace Relations Act, 2015. Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint. |
Decision:
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Having carefully considered all evidence available to me, I find that the Complainant has failed to submit his complaint within the required time limit. I find that I do not have the jurisdiction to hear this case. |
Dated: 19-03-2020
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Time limits – no jurisdiction |