Complainant

Respondent

Anonymised Parties

A Hospital Porter

A Hospital

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-00031004-001

19/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00031004-002

19/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00031004-003

19/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031004-004

19/09/2019

The Complainant commenced employment as a porter with the Respondent, a hospital, on 1st January 2005. His employment ended on 4th December 2018. His gross annual salary was €31,000. He worked 39 hours per week. A complaint was received by the WRC on 19th September 2019. A hearing took place on 10th March 2020.

The Respondent put forward an argument that the four complaints lodged by the Complainant were lodged outside the statutory timeframe for doing so under the relevant Acts.

The Respondent submits that the Complainant has failed to demonstrate that reasonable cause prevented him from lodging his complaint within the statutory six-month timeframe.

The Respondent refers to preliminary submission, submitted by the Complainant’s representatives to the WRC which states that the Complainant had instructed his solicitor that he was in a poor state of mental health and wellbeing including during the statutory time limit period and that he had been dealing with matters pertaining to his home life, resulting in him being “in difficulty” to manage other issues in his life.

The Respondent submits that such instruction fails to explain or afford excuse to the Complainant’s tardy submission of his complaint to the WRC, in line with the Labour Court decision in Cementation Skanska v Carroll (Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425).

The Respondent submits that the legislation is clear that the statutory time limits in respect of each of the Complainant’s complaints is six months.   The Complainant was dismissed on 4th December 2018. No notice payment was owing to him nor did he take any annual leave after that date.

In conclusion on the Preliminary Issue, the Respondent submits that these complaints ought to be dismissed.

The Complainant refers to Cementation Shanska Ltd V Carroll. The Complainant submits that that if so adjudicated that the Complainant must show reasonable cause for delay the date of contravention is 4th December 2018, it is submitted without prejudice to the within unfair dismissal claim that this is plus the notice period. Given that this notice period should have been 6 weeks, as the Complainant had more than 10 years’ service, the effective date of termination was 15th January 2019. The initial six-month time limit would run to 14th July 2019. If extended because of reasonable cause the time limit would extend to 14th January 2020.

The Complainant provided a detailed resume of matters pertaining to correspondence between the Complainant and the Respondent during the period September 2017 and October 2018. This resume included summaries of reports provided by the Respondent’s own Occupational Health Physician which the Complainant submits made it clear that the Complainant’s absence in this period was due to stress related illness.

The Complainant also submits that in a medical report of 11th December 2019, the Complainant’s GP reported that the Complainant had attended for consultations on 28th June 15th August and 19th September 2017. The Complainant again attended for consultation on 11th September 2019. In all consultations the Complainant complained of sleep disruption and anxiety.

The Complainant submits that the following matters are grounds for reasonable cause for the delay:

a.       The Complainant has instructed his solicitor that he was in a poor state of mental health and well-being including during the statutory time limits periods;

b.       The Complainant has instructed his solicitor that he was dealing with matters pertaining to his private home life which circumstances were contributed by his dismissal from employment with the Respondent.

c.       The cumulative impact of the foregoing rendered the Complainant being in difficulty to manage, address and/or deal with other important issues in his life during the statutory time limit periods.

The Complainant submits that the Respondent has suffered no prejudice by delay because it was aware of the Complainant’s ongoing health issues and this was confirmed by the Respondent’s own OHP. Furthermore, in a report by the OHP dated 15th December 2017, it was highlighted that the primary obstacle for the return to work for the Complainant was the investigation of his grievance pursuant to work matters.

The Complainant submits that if so adjudicated that the Complainant must show reasonable cause for delay he has met the test for reasonable cause as set out by the Labour Court in Cementation Shanska v Carroll.

The Complainant referred to the Statute of Limitation and case of the Minister for Finance v Civil and Public Service Executive Union [2006] IEHC 145 was addressed by the Labour (Court) in Seamus (James) O’Dwyer (claimant) v Sword risk Services Limited (respondent) [2014] 25 E.L.R. and submits that the Complainant was experiencing ongoing persistent health issues from June 2017 and in view of the reports from the OHP and the Complainant’s GP, and that as he was operating under a disability from June 2017 the statutory limitation period provided for in the Workplace Relations Act 2015, does not begin to run as per the provisions of s49 of the Statute of Limitations Act 1957 until the Complainant ceased to be under a disability.

In direct evidence, the Complainant stated that after his dismissal he was “not in the right state of mind” and that he was suffering from anxiety which prevented him from actioning a complaint.

I have considered all the matters written and verbal put before me very carefully.

Section 8(2) of the Unfair Dismissals Act which states the following in respect of time limits:

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any…

( 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”

Section 41 of the Workplace Relations Act 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.

In the usual course, the date of dismissal is the 4th December 2018 and the six-month limitation period is assessed from that date. Even taking the later date of the 14th January 2019, as the date of dismissal would not have brought the claim within the limitation period provided in section 8(2)(a) of the Unfair Dismissals Acts.

 The test to extend time to permit a claim of unfair dismissal submitted later than six months but within one year has been reduced from “exceptional circumstances” to “reasonable cause”.

In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” 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 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. Here 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.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held 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 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 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.”

The circumstances explained by counsel for the complainant are, of course, very unfortunate. However, insufficient evidence has been adduced to give reason why the Complainant could not have lodged a complaint with the WRC before the six-month time limit expired.

The Complainant failed to adduce evidence relating to the period between the dismissal on 4th December 2018 and the lodging of the claim with the WRC on 19th September 2019, that would support his claim for reasonable cause. The letters from the OHP and the Complainant’s own GP referred to by the Complainant’s representatives either predate or postdate the relevant period.

Stating that the Complainant raised issues with his solicitor pertaining to difficulties he was experiencing regarding his mental health and private life is not sufficient cause to explain a delay of over nine months in lodging his complaint.

Having considered the Labour Court findings referred to above, I am obliged to find that the four complaints made by the Complainant cannot proceed. The length of delay in this case was significantly more than a minimal one. Taking these findings together, I conclude that the claim cannot proceed as it is statute-barred pursuant to section 8(2) of the Unfair Dismissals Act, as amended and section 41 of the Workplace Relations Act, 2015.

Pursuant to section 8(2) of the Unfair Dismissals Act, as amended, and for the reasons outlined above, I decide that the Complainant has not shown reasonable cause to allow the claim to proceed in circumstances where the complaint was referred later than six months of the date of dismissal. The claim, therefore, does not succeed.

Pursuant to section 41(8) of the Workplace Relations Act, 2015, and for the reasons outlined above, I decide that the Complainant has not shown reasonable cause to allow the claim to proceed in circumstances where the complaint was referred later than six months of the date of the alleged contravention. The claim, therefore, does not succeed.

Pursuant to section 41(8) of the Workplace Relations Act, 2015, and for the reasons outlined above, I decide that the Complainant has not shown reasonable cause to allow the claim to proceed in circumstances where the complaint was referred later than six months of the date of the alleged contravention. The claim, therefore, does not succeed.

Pursuant to section 41(8) of the Workplace Relations Act, 2015, and for the reasons outlined above, I decide that the Complainant has not shown reasonable cause to allow the claim to proceed in circumstances where the complaint was referred later than six months of the date of the alleged contravention. The claim, therefore, does not succeed.

Out of time, reasonable cause.