Complainant

Respondent

Anonymised Parties

A Cleaning Operative

A Hotel, Spa and Golf Resort

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00033472-002

03/01/2020

The complainant was employed by the respondent from on or about 28th September 2006 until her dismissal for incapacity on 3rd August 2018. On 3rd January 2020, the complainant lodged a complaint relating to an alleged unfair dismissal and a complaint relating to the non-payment of her redundancy entitlements to the Workplace Relations Commission (WRC). The complaint relating to an alleged unfair dismissal was submitted approximately 17 months after the termination of the complainant’s employment and was subsequently closed by the WRC on the basis that it was submitted beyond the outer limit of 12 months permitted by the legislation.

Note:

The complainant was provided with an Interpreter by the Workplace Relations Commission at the adjudication hearing. The regular Lithuanian Interpreter was unexpectedly delayed, and the replacement Interpreter left the hearing shortly after it began on the basis that said she did not understand what was being discussed. The complainant’s son who spoke fluent English assisted in the hearing from that point on.

Much of the complainant’s verbal submission at the adjudication hearing related to the unfair dismissal element of the complaint. It was explained to the complainant through her son that it was not possible to consider the issue of unfair dismissal as the outer time limit for that complaint was 12 months from the date of the dismissal and the complaint was not submitted to the WRC until approximately 17 months after her employment had ended.

The redundancy complaint was submitted outside the period of twelve months but within the two-year outer limit permitted by the Redundancy Payments Acts, 1967-2014. In order for an extension of time to be granted, the complainant must show that the delay in submitting the complaint was due to reasonable cause.

The complainant is seeking an extension of time. The complainant stated in correspondence that the complaint was not submitted on time due to an oversight by the Citizens Information Centre. On that basis the complainant is of the view that her application to extend time should be accepted.

The respondent contends that the complainant’s application to extend time should be rejected. The respondent stated that there is no evidence that the Citizens Information Centre failed to submit the complaint in time. The respondent stated that even if that were the case it would not constitute reasonable cause for the late referral of the complaint. The complainant cited the Labour Court Determination in Cementation Skanska v Carroll DWT0338 in support of its contention that an extension of time should not be granted.

The respondent further cited the Labour Court Determination in Galway and Roscommon ETB V Josephine Kenny (UDD1624) which states as follows:

“The Court cannot accept that a miscalculation of the due date amounts to “exceptional circumstances” as defined by Section 44(4) of the Workplace Relations Act, 2015. The miscalculations of the deadline date is akin to a misinterpretation of the statutory provisions. The Court is satisfied that the legal principle ignorantia juris non excusat (ignorance of the law excuses not) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit.

While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the Act it cannot excuse a delay. In Minister for Finance v CPSU and Ors [2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights as opposed to the facts giving rise to those rights cannot be accepted as an excuse for not observing a statutory time limit.

The respondent contends that the complainant has not satisfied the “reasonable cause” test to be granted an extension of time and requests that the complaint be declared out of time.

In relation to the within complaint, I find as follows:

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: -

“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”.

In the instant case, the complainant sought an extension of time on the basis that the Citizens Information Centre had not lodged the complaint within the statutory twelve-month time limit. While there is no documentary proof of this occurrence, if it were the case, I am of the view that while it would explain the delay in submitting the complaint, it would not offer an excuse for the delay. On that basis I find that the complainant has not satisfied the test as set out in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll and accordingly, I do not grant the extension of time.

Having considered the submissions of both parties, I find that the within complaint is out of time and is therefore statute barred.

Redundancy entitlements