RPD207

1.Appeal of Adjudication Officer Decision No: ADJ-00024250 CA-00030969-001

BACKGROUND:

2.The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 17 April 2020 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 5 November 2020. The following is the Determination of the Court:



DETERMINATION:

This is an appeal by Mr Gerard Daniel (“the Complainant”) against a decision of an Adjudication Officer (ADJ-00024250, CA-00030969-001, dated 19th March 2020 under the Redundancy Payments Acts 1967 - 2014 (‘the Acts’). The Adjudication Officer held that the Complainant claim for statutory redundancy against Dublin Enterprise & Technology (“the Respondent”) was out of time and therefore she held that she had no jurisdiction to hear the case.

The Notice of Appeal was received by the Court on 17th April 2020.

Preliminary issues

There were two preliminary issues raised in the Respondent’s submission. Firstly, that the claim under the Acts was referred to the Adjudication Service of the Workplace Relations Commission (WRC) out of time and secondly that the Complainant was not an employee of the Respondent, as it held that he was engaged as a contractor initially and subsequently by a company owned by the Complainant which utilised him to perform the contract.

The import of the submissions advanced on these points had the potential to in the first instance result in the claim being statute barred and in the second case it could deprive the Complainant of the necessary legal standing (locus standi) to pursue a claim under the Acts. In both instances the Court would have no jurisdiction to hear the substantive case under the Acts. Therefore, as the Court is satisfied that significant savings in time and expense could be achieved by dealing in the first instance with the timing issue as a discrete question of law by way of a preliminary determination, it directed that the hearing be devoted to the legal questions identified following which the Court would issue a preliminary determination.

Position of the Parties

Both parties submitted comprehensive submissions to the Court, which are summarised below.

Counsel for the Respondent, Ms Julia Lawlor, B.L., submitted that the Complainant was not and never had been an employee of the Respondent. She said that the Complainant had presented his complaint under the Acts to the WRC outside the 52-week limitation period stipulated in Section 24(1) of the Acts. The complaint was submitted to the WRC on 18th September 2019, in circumstances where he alleged that a termination of his employment occurred on 30th November 2017. In such circumstance, a complaint would be required to be made no later than 29^thNovember 2018. Counsel further contended that no circumstances amounting to reasonable cause had been advanced by the Complainant such that an extension of the time period could be granted pursuant to Section 24(2A) of the Acts. Accordingly, Counsel submitted that the Court should not entertain the complaint.

The Complainant, who was unrepresented, contended that any delay in lodging the complaint with the WRC was entirely due to the process of seeking a determination from the Scope Section of the Department of Employment Affairs and Social Protection (DEASP) regarding his employment status. He told the Court that he was guided by the WRC and the Citizen Information websites to seek such a determination when he was conducting his research prior to submitting his claim under the Acts. He said that this process took a lengthy period of time. He made his application to DEASP on 2^ndNovember 2017, he received a decision on 5^thJanuary 2018 which held that he was not in insurable employment. He appealed that decision and did not receive a response until 6^thJune 2019. The Appeals Board held that he was in insurable employment and consequently he submitted his claim to the WRC on 18^thSeptember 2019, having allowed for the statutory period of review by the Respondent, if any were to take place.

The Complainant submitted that his actions were reasonable and rational having regard to the published information from both websites, which he contended, could have reasonably been presumed to be correct. He said that had he known that he could have submitted a separate claim under the Acts to the WRC, he would have done so. He said that his claim was submitted to the WRC within 94 weeks after the termination date and within the 104 weeks allowed under Section 24(2A) of the Acts. He submitted that the knowledge required of an entitlement to bring two separate parallel claims to two separate bodies under separate specific legislation may not be known to an ordinary worker acting without legal representation. In those circumstances he submitted that his application to extend time was within the test of reasonableness as set out inCementation Skanska v CarrollDWT0338.

Ms Lawlor submitted that his application in relation to his insurability of employment to DEASP and the consequent decision had no impact or bearing on the Complainant’s claim save that it may be considered persuasive. Therefore, there was no requirement on the Complainant to bring his application to DEASP before bringing the within claim. In that regard, she referred to the High Court inThe National Museum of Ireland -v- Minister for Social Protection[2016] IEHC 135 where Murphy J. considered this very question, and held as follows:-

• “ The Court does not consider that issue estoppel arises in the instant case. 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.”

Conclusions of the Court

The Law

Section 24 (2A) of the Acts provides, in effect, that where reasonable cause is shown for a delay in presenting a claim under the Acts the 52-week time limit at section 24(1) may be extended to a period not exceeding 104 weeks beginning on the date of dismissal or the date of termination of employment.

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 WTC0338 (October 28, 2003)CementationSkanska (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 is for the Complainant to establish that there is reasonable cause for the delay. The Complainant submitted that the reasons for the delay were twofold, firstly that he was of the view that he was required to establish his employment status via the Scope section of DEASP and secondly, as a lay litigant he was not aware of the fact that a separate claim could be submitted without a decision from DEASP.

The Complainant submitted that he was awaiting the outcome of a decision from DEASP to clarify his legal entitlements before pursuing his complaint. This point was also addressed by Murphy J. inThe National Museum of Ireland -v- Minister for Social Protection[2016] IEHC 135 where she held that was no issue estoppel and /orres judicataarises in respect of a decision under the Social Welfare Acts and a claim under employment legislation that is brought to the WRC. The Court therefore finds that a decision regarding the Complainant’s employment status under the Social Welfare Acts, while it may be persuasive, has no effect on a decision of an Adjudication Officer or this Court under the 1967 – 2015 Acts.

The Complainant cannot rely on ignorance of the law in seeking to extend the time limit. In general, ignorance of one’s legal entitlements, as opposed to ignorance of the facts giving rise to those rights, does not excuse a failure to present a claim in time. This was firmly established by the High Court inMinister for Finance v Civil and Public Services Union & Ors[2007] 18 E.L.R. 36.

This Court is bound by these Decisions.

Based on the information submitted before the Court, the Court is not satisfied that the Complainant has shown reasonable cause in accordance with Section 24(2A) of the Acts for allowing an extension of time up to 104 weeks. Accordingly, the Court rejects the application made under Section 24(2A) of the Acts and finds that the complaint made was out of time.

In these circumstances it is unnecessary for the Court to deal with the substantive claim under the Acts.

Determination

The Complainant’s application and appeal are disallowed, and the Decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
MK	______________________
10 November 2020	Deputy Chairman