Complainant

Respondent

Anonymised Parties

An Insurance Official

A Finance and Insurance Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00031051-001

22/09/2019

The complainant was employed by the respondent on the 3rd of June 2008, as an insurance official, and her employment ended on the 22nd of March 2019. She was paid €3,000 per month and she worked a 40-hour week. She is claiming that she was constructively dismissed. The complainant referred a complaint to the WRC on the 22nd of September 2019 and the respondent submits that the complaint was referred outside the statutory 6-month time limit. 

The complainant said that she worked for the respondent company at their offices in Harold's Cross for 11 years. On the 4th of March 2019, the managing director called all the staff to a meeting to inform them that he had decided to merge the company with another insurance company. All the employees would have to relocate to offices in Sandyford. The complainant said she was very upset about this. She was invited by email to meet a representative of the new company on the following day, the 5th of March 2019. All the staff attended that meeting and they were given a handbook and details introducing them to the new company. The complainant said she had a one-to-one meeting with two representatives of the company that day. She requested a change to her hours of work for childcare reasons, because travelling to Sandyford would add two extra hours on to her work day. She said that she would have to use public transport as there was no parking in Sandyford and she would have to rearrange the childcare she had in place. The complainant said that some of her colleagues have flexible hours as they were travelling from the north side of the city and she requested the same arrangements. The company representative Ms A told her that she would come back to the complainant. She said she was refused a change in hours and Miss A did not meet with her to discuss the matter further. 

The complainant said that on the 11th of March 2019 she went for an interview for another job and was successful. She emailed Ms A and tendered her resignation. She said she resigned because she could not do the commute to Sandyford and she could not change her child care arrangements. She is claiming that she was constructively dismissed.

The respondent submitted that the complainant lodged a complaint with the WRC outside the statutory time limit. It was submitted that she resigned from the employment with effect from the 22nd of March 2019 and the complaint was received by the WRC on the 22nd of September 2019, one day outside the 6 month time limit. The complainant referred a complaint under the TUPE Regulations to the WRC on the 11th of June 2019. This case was due to be heard on the 23rd of September 2019, but the complainant withdrew the complaint on the 21st of September 2019 and referred the complaint herein on 22nd of September 2019 which is outside the statutory 6 month time limit.

Section 41(8) of the Workplace Relations Act provides for an extension of time if it can be established that the failure to present in time “was due to reasonable cause”. I was referred to the case of Salesforce.com vs Alli Leech Determination EDA 1615, where the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time. The Labour Court stated: “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 DWT0338Cementation Skanska (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.”

It was submitted that in that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should be extended 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 in in the case of Minister for Finance vs CPSU and others 2007 18 36 ELR 36. The test formulated in Cementation Skanska vs Carroll draws heavily on the decision of the High Court in Donal O'Donnell and Catherine O'Donnell vs Dun Laoghaire Corporation 1991 IRLM30. Costello J stated as follows:

“The phrase “good reasons” is one of wide import which 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 their test must be an objective one and the Court should not extend the time merely because an aggrieved Plaintiff believed that he or she were 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. 

It is clear from the authorities that the test places the onus and the Applicant on an extension of time to identify the reasons for the delay and to establish that the reason relied upon to provide a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal link 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 complaint that those factors were the actual cause of the delay.  Finally, while the established tests impose a relatively low threshold of reasonableness on an Applicant, there is some limitation on the range of issues which can be taken into account.”

It was submitted that, 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. 

In University College Dublin vs Dr Aideen Hartley Determination FTD1314, the Labour Court stated that: “except in the case of a person under a disability, ignorance of one's legal entitlements, as opposed to ignorance of the facts giving rise to those rights, do not excuse a failure to present a claim in time”. 

It was submitted that in applying the above case-law the claim is out of time and there are no reasons that would allow an adjudication officer to extend the time under section 41(8) of the 2015 Act. 

Substantive case 

The entire issued share capital of the respondent company was purchased by another insurance company on the 7th of March 2019 and the respondent is now a company within this insurance group. The complainant was employed by the respondent as an insurance official and her contract of employment provided that her place of work may change from time to time and she would be given reasonable notice of any such change. Because of the purchase a decision was taken to relocate the staff of the respondent company from their existing premises in Harold's Cross to the new owner’s premises in Sandyford. The staff were informed of this decision on the 4th of March 2019.

On the 5th of March the staff, including the complainant, met with representatives of the new insurance group including the CEO and Ms A. As well as a group meeting the new owners met the staff and a one-to-one basis to assure them of job security and that their roles as set out in the employment contracts would not change.  The staff were given information booklets and further information including the date of the move to Sandyford. The staff were informed that the new company would be as supportive as possible around their transition to the new premises and would be flexible where possible. Several the employees had flexible working hours from 8 a.m. to 4 p.m. and approached Ms A requesting a change in the working hours in the new company from 9 a.m. to 5 p.m. to 8 a.m. to 4 p.m. the hours they worked previously. Ms A explained that it was necessary for the respondent to continue to operate the business as usual and it was not possible to facilitate such request at that particular time, but once the staff settled in with the new company she would revisit their requests again.

Ms A has no recollection at any point of the complainant approaching her and having a discussion with her around working hours. If she had agreed to any change in working hours she would have written it up in an email or have some notes around such a discussion. The emails surrounding the complainant’s resignation do not elude to any such discussions around a change in working hours or any other particular issues that complainant may have had. It was submitted that the complainant decided to resign from her employment for her own reasons. She decided to apply for a new position in January 2019 because she was unhappy in the job. 

It was submitted that the complainant was not constructively dismissed.

 I was referred to the definition of dismissal in section 1 of the Unfair Dismissals Act 1977 which provides:

(b) “the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or”

It was submitted that the foregoing definition identifies two triggers which might lead to a constructive dismissal, that being the conduct of their employer leading to an entitlement, or the conduct leading to a situation where it would be reasonable for the employee, to resign. The two tests, the contractual test and the reasonableness test were set out by Lord Denning in Western Excavating ECC Ltd vs Sharp 1978 ICR 221.

The complainant failed to utilise the respondent’s grievance procedure or to give the respondent an opportunity to address any grievances she may have had in relation to the move. It was submitted that the failure to formalise her grievance does not satisfy the burden of proof placed on her in a constructive dismissal case. Furthermore, the complainant did not give the employment with the new owner any reasonable chance before deciding to resign. She decided from the outset that she was not going to transfer to the respondent’s new offices. 

The general principle inherent in the unfair dismissal legislation is that a complainant who seems to invoke the reasonableness test in claiming that she has been constructively dismissed must also act reasonably. Just as an employer is required to follow fair procedures prior to dismissing an employee, employees are equally expected to pursue their grievances through any procedures laid down in the contract of employment or within the employment relationship before resigning. I was referred to the cases in Conway vs Ulster Bank limited UD142/1987 Gregory vs Cannon Hygiene Products Ireland Ltd UD283/1992 and Harold vs St. Michael's House UD112/ 2004. 

In these cases, it was submitted that the Tribunal considered that the employee did not act reasonably in resigning without first having substantially utilised the grievance procedure in an attempt to remedy his or her complaints. The complainant did not raise any grievances with the respondent about the move to the new premises. Ms. A attended the officers in Harold's Cross each day between the 5th and 22nd of March to answer any queries or concerns that the employees had. She kept in constant contact with the complainant and other employees in advance of the move and the complainant did not raise any particular issues with her. She did not raise the issue of flexible hours with her if she had and had been refused she could have lodged a grievance.

In conclusion, it was submitted that the complainant claim is out of time. Without prejudice to that she did not raise a grievance in relation to any alleged issues and had decided to change her job well before the respondents change in ownership. It was submitted that the complainant has not discharged the burden of proof and was therefore not unfairly dismissed.

Preliminary Issue Time Limits

The first matter I must consider is whether the time limit for referring the complaint to the WRC has been complied with, or whether it can be extended if it can be extended where it was referred outside the time limit.

Section 8(2) of the UD Act 1977 – 2015 provides:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period 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,”

The complainant resigned on the on the 22th of March 2019 and she referred this case to the WRC on the 22th of September 2019. I note that the complainant referred a complaint to the WRC under the TUPE Regulations on the 11th of June 2019 and on the advice of her solicitor she withdrew that complaint on the 21st of September 2019 and referred the complaint herein on the 22nd of September 2019, one day outside the 6 months after resigning. The complainant’s solicitor submitted that the complainant’s resignation took effect on the 23rd of March and that this complaint was within time. He further submitted that because the complaint was referred at a weekend that the time limit should be extended and sought an extension of the 6 month time limit for referring the complaint.

I am satisfied from the complainant’s email tendering her resignation and from the complaint form referring the complaint to the WRC that her employment finished work on the 22nd of March. I find therefore, that this complaint was referred I day outside the 6 month time limit pursuant to Section 8(2)(a) of the UD Act.

Thetest for deciding if an extension should be granted if reasonable cause has been shown was set out by the Labour Court in Determination No. DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. The relevant passage is: “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 length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. The Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

This reasoning was followed by the Labour Court in the case of Kepak Group v Valsomiro Augusto Arantes UDD1625, the Court stated in relation to an application for the extension of time limits:

“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 in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.”

The Labour Court went on to say:

“It is for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay.”

The complainant provided no reason for the delay in referring the complaint. I note that she had the benefit of legal advice from her solicitor before she withdrew the complaint from the WRC under the TUPE Regulations on the 21st September 2019, and referred the complaint herein the following day and one day outside the statutory time limit. It is difficult to understand why the complainant was not advised about the statutory time limit for referring a complaint.

I am satisfied that there was no reasonable cause put forward by the complainant to explain the delay in referring the complaint in accordance with the jurisprudence cited above.   As there was no reasonable cause for the delay, I cannot grant an extension of the statutory time limit of 6 months for referring a complaint pursuant to section 8(2)(b) of the UD Act 1977. For this reason, I find I have no jurisdiction to hear the matter.

Pursuant to Section(8)(a) of the Unfair Dismissals Act, I find I have no jurisdiction to hear the complaint

Unfair Dismissals Act – Constructive Dismissal, Section 8(2)(a) and (b) - time limits, failure to provide reasonable cause for the delay.