ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025049

Parties:

Complaint:

Date of Adjudication Hearing: 6th January 2020 was adjourned to allow representation by Solicitor & 3rd February 2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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:

Request to extend the time limit

Complainant’s Position

The Complainant requested an extension to the time limit as is allowed under Sec 41 (8) of the Workplace Relations Act 20105 it states, “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”.

He stated that on 14th November 2018 he was threatened and prior to this he had been attacked with a ‘chokehold’. The Respondent investigated the incident but did not find for the Complainant. This led to his decision to terminate his employment. Following his resignation, he suffered panic attacks and depression. He had availed of counselling before he resigned. After his resignation he tried homeopathy, yoga and mindfulness. Some 10 months after his resignation he went to his GP. He was prescribed anti-depressants. He received advice from a Counsellor about taking this matter further. He then decided to make a complaint to the Workplace Relations Commission (WRC) for constructive dismissal. He believes that the time limit should be extended. He has established reasonable cause which explains the delay and gives an explanation for it.

Respondent’s Position

The Respondent cited the Labour Court decision in the Cementation case DWT0338 , “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…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 the circumstances known to the complainant 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 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”. They also cited the Labour Court decision in Salesforce . com v Leech (EDA1615) where it stated, “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 delay”. They cited 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”. They stated that the Complainant has failed entirely to establish any reasonable, agreeable, objective or arguable reasonable cause as defined in the Labour Court for the delay in lodging his claim. The delay in submitting the claim of over 11 months is prejudicial to the Respondent. The explanations provided are without any supporting material and are wholly subjective. This request to extend the time limit should be rejected.

Decision on the request to extend the time limit

I refer to the case law cited above in particular the Cementation case.

I note that the Court states that the reasons for the request to extend the time limit should both explain the delay and afford an excuse for the delay.

I note that the Complainant received advice from his Counsellor before he resigned about taking this matter further, but he did not.

I note that he asserts that he suffered panic attacks and was depressed, but he did not supply any supporting material to back this up.

I note that he undertook homeopathy, yoga and mindfulness to deal with this, again no supporting material as to why he tried this other than his opinion that it was worth doing.

I find that his reasons were subjective.

I find that during this time after he had resigned, he was not medically certified as unfit for work.

I find that he was not on disability allowance. In fact, he was on Job Seekers allowance which means that he was fit for work.

I find that he only applied for one job in a similar environment but only stayed for one day.

I find that he spent time training to become a taxi driver yet again no supporting material was presented to show the extent of the training, who provided it, the duration of the training and the outcome other than he decided against continuing it.

I find that any reason or excuse for not submitting the claim in time must occur in the first six months.

In this case I find that the Complainant did not visit his Doctor until some 10 months after the resignation and only then was he prescribed anti-depressants.

I find that his reasons to extend the time limit were subjective whereas in the Cementation case referred to above states it “suggests an objective standard”.

I find that no objective standard was presented.

I did not find a causal link between the circumstances cited and the delay as is suggested in the Cementation case referred to above.

I find the length of the delay was almost 11 months, which should be taken into account according to the Cementation case referred to above. This was not a short delay. A longer delay requires cogent reasons.

I find that the Complainant has not presented any cogent reasons to extend the time limit.

I have decided not to grant an extension to the time limit. Therefore, I find that this complaint is out of time.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have decided not to extend the time limit as per the above stated reasons.

I have decided that this complaint was presented outside the time limit allowed and so it is out of time.

I have decided that I do not have jurisdiction to adjudicate on this complaint.

I have decided that this complaint is not well founded.

Dated:   14/05/2020

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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