ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00022744
Parties:
| Complainant | Respondent |
Anonymised Parties | An accounts administrator | A car rental/mobility company. |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00029580-002 | 08/07/2019 |
Date of Adjudication Hearing: 18/08/2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 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 was employed as an Accounts Administrator from 6th December 2011 until 1ST April 2016. This complaint was received by the Workplace Relations Commission on 8th July 2019 and is made as four individual complaints, these are as follows: CA -00029580 -001– A complaint submitted under the Unfair Dismissals Act, 1977.This complaint relates to the dismissal of the Complainant. CA -00029580 – 002 – A complaint submitted under section 13 of the Industrial Relations Act, 1969. This complaint relates to Bullying and Harassment procedures. CA – 00029580 – 003 – A complaint submitted under section 77 of the Employment Equality Act, 1998. This complaint relates to alleged Discrimination of the Complainant on the grounds of Gender, Civil Status, Religion, Age and Race. CA – 00029580 – 004 - A complaint submitted under section 77 of the Employment Equality Act, 1998. This complaint relates to Equal Pay.
The hearing of this complaint took place in the Workplace Relations Commission, Dublin on 5th March 2020 and 18th August 2020. By letter dated 15th July 2019 the Complainant was informed by the Workplace Relations Commission that “an Adjudication Officer may not entertain a complaint /dispute under section 77 of the Employment Equality Act, 1998, or under Section 8 of the Unfair Dismissals Act,1977, if it has been presented after the expiration of the period of 12 months beginning on the date the contravention to which the complaint relates. It would appear from the information submitted by the complainant that complaints CA – 00029580 – 001, CA – 00029580 – 003 and CA – 00029580 – 004 do not fall within the statutory timelines. As such, these three specific complaints are now closed and will not proceed to adjudication with the Workplace Relations Commission. The remaining specific complaint, CA – 00029580 – 002 (Industrial Relations Issues) remains open”. |
Summary of Complainant’s Case:
The Complainant has submitted a very large volume of papers in relation to four complaints. As stated in the Background, three out of four complaints submitted by the Complainant were closed due to time limits. The following summary only relates to the one remaining complaint, CA – 00029580 – 002 submitted under section 13 of the Industrial Relations Act,1969. Social exclusion and isolation The Complainant contends that she was excluded from coffee and lunch staff breaks. During her time with the Respondent she was always excluded and new team members were encouraged to keep distance from her as she was a “weird” or “depressed” person. This Complainant believes this was a form of manipulation. Damaging someone’s reputation by gossip or rumours. The Complainant believes lies were being told about her health; this was noticed by behaviour of her colleagues – especially so with new team members (most of them were new). The Complainant believes this attitude towards her by colleagues was being supported by senior management. She believed she was being excluded and colleagues were being disrespectful to her. By way of submission the Complainant has provided many contentions of what she believes to be incidents of intimidation of her and gossip and rumour in relation to her was commonplace. The Complainant has listed many incidents on dates from 2014 through to February 2016. I do note that in November 2014 the Complainant reported bullying however she adds that she did not want to make an official complaint. |
Summary of Respondent’s Case:
Background to Complainant.
The Complainant in this matter, was employed by the Respondent from the 6th December 2011 to 1st April 2016 as Accounts Administrator. The Complainant’s main duties and responsibilities included:
• Processing supplier & partner invoices ensuring they are dealt with in an accurate and timely manner; • Ensuring suppliers and partners are paid within specific payment terms; • Reconciliation of supplier and partner payments; • Communicating with relevant departments to ensure the key information is shared across all relevant function; • Ageing analysis • Accruals (general, credit cards and brands) • Prepayments • Support with fixed assets management • Support with month end reports • Credit card management (13) • Employee travel expenses management
Response to Claim.
In this case, taken by the Complainant under Section 13 of the Industrial Relations Act 1969, the Complainant makes a number of most serious allegations against her former employer (the Respondent). Said allegations and related alleged events go back to a period over three years prior to the said claim being actually lodged with the WRC and over three years after the Complainant’s employment ceased with the Respondent. These serious allegations are included within a large volume of documents submitted by the Complainant, totalling over 600 pages and consisting of a multiplicity of various claims made by the Complainant against the Respondent.
In these documents, submitted well over three years after alleged events, and without any prior knowledge of same on the part of the Respondent the Complainant makes a number of general but very serious allegations against the Respondent, including but not limited to acts of alleged criminality, which according to the same documentation has been formally reported to An Garda Siochana.
The specifics of the alleged matters pertaining to the Respondent then date back to events that allegedly occurred over three years prior to claim being lodged and therefore extend well beyond all statutes of limitation in an employment rights and legislation context. Notwithstanding there are such no time limits stated within Section 13 (IR Act) there is nonetheless ample case law pertaining to delays in submitting claims under employment rights legislation and this legal aspect will be covered later in this submission. Regardless of all of these considerations the Respondent most strongly submits that given matters at the centre of the Complainant’s claim against the Respondent have been formally reported to An Garda Siochana and include criminal allegations of fraud and computer hacking, both of which are included by the Complainant in these proceedings then it is wholly inappropriate and wrong that these matters are concurrently subject to WRC adjudication under the voluntarist IR Acts. In all circumstances, for the WRC to become engaged in such matters under the provisions of the IR Acts would not only be most irregular and unsound but further would be deeply prejudicial to the rights of the Respondent. The Respondent notes that the WRC rejected and “closed” a number of concurrent claims made by the Complainant against the Respondent relating to the very same matters now listed under Section 13 of the aforementioned IR Act. The “closed’ / rejected cases were attempted to be brought by the Complainant under the Unfair Dismissals Act, and a number of sections of the Equality Acts but these were correctly rejected by the WRC has they had long exceeded the statutory time limits for the taking of such claims. As the Adjudicator would be aware there is no similar statutory time limit specifically referenced within Section 13 of the IR Act 1969. However, it surely goes that the time frame for the taking of such a claim must not prejudice the Respondent or be made without legitimate examination of a just or reasonable cause for such an extended delay. Notwithstanding the extreme time-lag from the alleged events in 2016 to the time of the lodging of claim, over 3 years later and further notwithstanding the very obvious prejudice and confusion to a fair defence this causes the Respondent, the Respondent at the same time refutes and rejects any suggestion or claim that in engaged in any wrongdoing whatsoever against the Complainant or that it in any way undermined the rights or standing of the Complainant when the Complainant was employed by the Respondent or any time thereafter.
Complainant “Cover Note – Complaints”
It is noted from the Complainant’s extended submission documentation that she formally alleges in her “Cover Note” in bold that “I am a victim of organised discrimination”. The core allegation to proceedings appears to have been made in July 2019 (according to WRC copy issued to the Respondent on August 9th 2019). This set of allegations includes the referencing of three other employers (respondents) that the Claimant appears to have worked for subsequent to the ending of her employment with the Respondent in April 2016. Respectfully, the application of the IR Act in this context is wholly wrong and manifestly unsound. Notwithstanding same, the Respondent refutes this allegation and suggested conspiracy as utterly preposterous and outrageous in its entirety. The Respondent reaffirms and reasserts that the other three organisation parties referenced in the Complainant’s claim have absolutely no dealings whatsoever with the Respondent. The Respondent advises that the circumstance relating to the Complainant leaving employment with the Respondent was one of dismissal from employment following due process and fair procedure governed by the Respondent’s Disciplinary Procedures that were appropriately and fairly applied. The outcome of said procedures, being the Complainant’s termination from employment, was issued to the Complainant by way of letter of dismissal on April As can be determined within said letter of dismissal, there was provision for the Complainant to appeal the decision of dismissal in accordance with the Disciplinary Appeal Procedures. The Complainant did not exercise her right at the time, or in the weeks and months thereafter to make any such appeal. In the context of the 1969 IR Act (Section 13) there is clear onus on any individual Complainant to exhaust internal procedures prior to any referral to the WRC. This was not done by the Complainant, nor has any reason for this failure ever been put forward or submitted by the Complainant. The Respondent respectfully submits that this failure on the part of the Complainant is significant in the context of the aforementioned Section 13, particularly when the Complainant received explicit written advice from the Respondent advising her of her rights at the time in 2016. As stated, no appeal or grievance of any kind was made until the matter was raised some three plus years later through the WRC under said IR Act. Moreover, as a result of the very significant length of time that had passed before the Complainant decided to make her claim to the WRC all but one of the internal individuals referenced by the Complainant in her belated IR claim were no longer in employment with the Respondent and therefore the opportunity to make the required direct rebuttal has been completely compromised. In the context of the Respondent’s defence it is further important to highlight that it was open to the Complainant to pursue her claim through a number of other employment rights processes including the Unfair Dismissals Act, or the Equality Acts. This was not done and in fact only became a consideration for the Complainant a number of years after alleged events and in a context in which no cause of delay be it reasonable or otherwise has been articulated by the Complainant. The Respondent respectfully submits that the actions of the Complainant in now pursuing these matters, many years after alleged events, through the application of the IR Act (Section 13) on the basis that no statutory time limit is referenced within same is in all circumstances an abuse of that process and completely contrary to the fair application of any such proceedings. In evidence at the adjourned WRC hearing of March 5th, 2020 and in summary the Complainant had several hours unchallenged by the Respondent to present her case. In evidence the Complainant alleged, amongst things, that the Respondent had; hacked into her work computer and continued to control it remotely against her will. This is not true and there is no evidence for same. That the Respondent had forced her to have medical examinations and had then conspired with a named Physiatrist and other medical practitioners to bully her and undermine her continued employment. This is not true and there is no evidence for same. That she was further bullied by at least two other named former employees who it was alleged were instrumental in getting the Complainant dismissed. The Respondent submits that no complaint was ever made by the Complainant at the time despite the Respondent having robust procedures. The Complainant also alleged that the Respondent continues to know about “everywhere I go” and continues to prevent her (the Complainant) from being employed by other employers. The Complainant stated that this has occurred in several other organisations in which the Complainant was seeking employment, and this alleged behaviour by the Respondent still continues. In response we say there is absolutely no evidence to support this very serious allegation of conspiracy and criminality by the Respondent. Said allegation is utterly false and completely baseless in all aspects. The Respondent hereby states that all of its interactions with the Complainant, as it related to her employment and in particular occupational health support was in the context of the Respondent being 100% supportive to the Complainant and concurrently being fully compliant to the employer’s duty of care obligations. The Respondent did all that was reasonable to assist and support the Complainant during her time in employment. The Respondent investigated the concerns of the Complainant as it related to her work computer being controlled by others and attempted to reassure and support the Complainant in this and other concerns, through the application of occupational health and other health interventions as well as HR providing additional training etc to the Complainant. The Respondent reiterates that at no time during her employment did the Compliant raise a formal grievance, nor as stated earlier did she appeal any aspect of her dismissal from employment which was ultimately and very reluctantly implemented through the application of fair procedure by the Respondent.
Delay “Just / Reasonable Cause”
The Respondent acknowledges that unlike provisions within all employment rights legislation there is no stated statutory time limits that restrict a Complainant from taking a claim under the IR Acts. In all other employment rights law there are such statutory time limits that require Claimants to lodge claim within six months of the matter in dispute occurring and this can be extended for “reasonable cause” by the WRC Adjudicator for up to another six months, bringing the time limit to a very conditional one year. The above case in question was lodged over three years after alleged events, that are in themselves refuted by the Respondent.
Even in the context of civil Employer Liability law the time statute for claim is two years. The Respondent respectfully argues that notwithstanding all of the above points of defence, the fair logic and established principles of extensive case law that applies in the context of delayed lodgement of employment law cases must be considered and so should apply in this case.
Case Law In a number of decisions relating to the delayed lodgement of claim the Labour Court has referenced its decision in Cementation Skanska (formerly Kvaerner Cementation) v Carroll (DWT0338). In this case 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.” The Respondent respectfully submits that its defence has been grossly prejudiced by the extended delay in the lodging of the claim against it. Not least that the those named in said claim have since left the Respondent organisation and even if those named individuals were available they would have to recall specific matters that were alleged to have occurred over four years ago. Said claim further includes others who are completely unknown to the Respondent. 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 complainant 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 delay in submitting the above claim amounts to over three years after alleged events and indeed over three years after the Complainant had concluded her employment with the Respondent. Said claim arrived without notice and in a context whereby the Complainant had several other opportunities to pursue her case both internally with the Respondent and externally within statute, but she failed to do so. In this setting and context, the very late application of the IR Acts by the Complainant is irregular unsound and highly prejudicial to the Respondent in that a normal defence is utterly compromised as a result. Conclusion a) The matter before the Adjudicator involves a central written allegation that the Complainant was (in bold) a “victim of organised discrimination” at the hands of the Respondent, along with three other named respondent organisations. The Complainant provides no evidence for this other than her own assertions. b) In 2016 at the time of the Complainant’s termination of employment from the Respondent organisation it was open to the Complainant to appeal the decision by the Respondent to terminate her employment. The Complaint did not take up this appeal and this in itself is a critical consideration in the context of any subsequent appeal under the IR Acts. c) It was further open to the Complainant to pursue a claim under the Unfair Dismissals Act or Equality Acts for up to one year after said conclusion of her employment with the Respondent. Again, this was not done. d) The subsequent application of the Complainant applying Section 13 of the 1969 IR Act over three years later and then with it including other subsequent employers within her claim is wholly inappropriate. e) It is for all of the above various reasons that we ask the Adjudicator to rule that it is unsound for this case to proceed or at a minimum that it is not possible to issue a recommendation in this matter given the many factors highlighted by the Respondent. Should the Adjudicator so decide that it is appropriate to make said recommendation / decision in this case then respectfully based upon all the above we ask the Adjudicator to find that said claims are not merited through lack of evidence and are accordingly are not well founded. |
Findings and Conclusions:
This has been a difficult complaint to hear and this was not helped by the conduct of the Complainant at hearing. I note the complaint was lodged with the Workplace Relations Commission on 8th July 2019, this is some three years and three months after the employment ended. The Complainant offered no reasonable explanation for such a delay. I also note that the Complainant attended an occupational health assessment on 5th October 2015 and attended an assessment with a consultant forensic psychiatrist on 17th November 2015. During both of these assessments has the complainant reported that she was being bullied and/or harassed at work. During the assessment on 17th November 2015 I note that the Complainant has quite clearly stated “If the PC problem is eliminated, then I will have no issues in the workplace”. The representative for the Complainant has concluded as follows: f) The matter before the Adjudicator involves a central written allegation that the Complainant was (in bold) a “victim of organised discrimination” at the hands of the Respondent, along with three other named respondent organisations. The Complainant provides no evidence for this other than her own assertions. g) In 2016 at the time of the Complainant’s termination of employment from the Respondent organisation it was open to the Complainant to appeal the decision by the Respondent to terminate her employment. The Complaint did not take up this appeal and this in itself is a critical consideration in the context of any subsequent appeal under the IR Acts. h) It was further open to the Complainant to pursue a claim under the Unfair Dismissals Act or Equality Acts for up to one year after said conclusion of her employment with the Respondent. Again, this was not done. i) The subsequent application of the Complainant applying Section 13 of the 1969 IR Act over three years later and then with it including other subsequent employers within her claim is wholly inappropriate. It is for all of the above various reasons that we ask the Adjudicator to rule that it is unsound for this case to proceed or at a minimum that it is not possible to issue a recommendation in this matter given the many factors highlighted by the Respondent. Should the Adjudicator so decide that it is appropriate to make said recommendation / decision in this case then respectfully based upon all the above we ask the Adjudicator to find that said claims are not merited through lack of evidence and are accordingly are not well founded. In Melbury Developments Ltd v Valpeters [2010] ELR 64 THE Labour Court stated that ‘mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’. Whilst the Melbury Development case quoted was an Employment Equality case I believe the same rules apply to the instant case in which I have read and listened to page after page of assertions with no factual evidence whatsoever. I have considered this conclusion from the Respondent and find myself in total agreement with the points raised. I find no merit whatsoever in this complaint for the reasons shown above and it is for this reason that the complaint is not well founded. |
Decision:
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
The complaint as presented is not well found. |
Dated: 7th September 2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
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