ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027712
Parties:
| Complainant | Respondent |
Anonymised Parties | Skip Driver | Waste Collection Company |
Representatives |
| Rory Muldowney In House Solicitor Darach McNamamra BL |
Complaint(s):
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-00035708-001 | 31/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00035708-002 | 31/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00035708-003 | 31/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00035708-004 | 31/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) | CA-00035708-005 | 31/03/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00035708-006 | 31/03/2020 |
Date of Adjudication Hearing: 18/09/2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.
The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal.
It is well established that there are two tests for constructive Dismissal in the Statutory definition provided. Either one of these tests can be invoked by the Employee.
The first is the Contract Test where an employee will argue an entitlement to terminate the Contract of Employment because of a fundamental breach of the of Contract on the part of the Employer. The breach must be a significant breach going to the root of the Contract.
Secondly, the employee may allege that he satisfies the 1977 Act’s “reasonableness” test. That is that the conduct of the Employer was such that it was reasonable for him to resign. That the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving.
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment (by reason of Constructive Dismissal) wherein she had worked for in excess of one year he is entitled to bring the claim. However, an issue has arisen regarding the time limits allowed to bring such a claim.
In a case of Constructive Dismissal, there is a generally accepted proposition that the Employee should engage and exhaust internal mechanisms which might be available in a given workplace before tendering a resignation. I would have regard for the seminal Employment Appeals Tribunal case UD 474/1981 Margot Conway -v- Ulster Bank Limited Wherein the Tribunal stated:
“The Tribunal considers that the Appelant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy her complaints. An elaborate grievance procedure existed but the Appelant did not use it. It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her but it is possible.”
In addition to the above the Complainant has further presented a number of complaints of a contravention by an employer of several Acts contained in Schedule 5 of the Workplace Relations Act of 2015. It is my obligation to make all relevant inquiries into the complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
Background:
The Complainant had tendered his resignation at a time when he was due to come off illness benefit and return to the workplace. He says he was Constructively dismissed on account of how he had been treated in the workplace when he had been there. |
Summary of Complainant’s Case:
The Complainant attended in person and gave his own account of the history of the Employment relationship. |
Summary of Respondent’s Case:
It is noted that the Respondent identified the correct name to be given to the Employer herein and that has been given in this decision and stated above. The Respondent in-House Solicitor had fully engaged with the WRC in advance of notifying me that the incorrect Respondent had been named. No issue has been made by either party. It is further noted that prior to the hearing, the Respondent had indicated an unwillingness to have an IR dispute be dealt with by the Adjudication process. This is within their rights as set out in the Industrial Relations legislation. The Respondent requested that I deaI with the issue of the delay in issuing proceedings as a preliminary point. As is the WRC practice, I heard evidence in relation to the substantive issues too. |
Findings and Conclusions:
In addition to hearing the preliminary point regarding delay I also heard the Complainant give a full account of the facts that led, he says, to the Unfair termination of his employment.
I have carefully listened to the Complainant who was cross examined by the Respondent representative. The Complainant commenced his employment in 2006 with the company G Ltd. The Company trading as P took over G ltd in 2016. The Complainant continued to be engaged with P although the type of work he did changed in that he was delivering skips. The Complainant worked for about 5 months under the Employer P. In August of 2017 the Complainant indicated by text message that he was having “problems”. The Complainant did not identify what these problems were and whether they even referred to the workplace. Within 4 days the Complainant started to submit sick certs and it is understood that the Complainant was out on illness benefit for a considerable period of time.
In his evidence the Complainant stated that the period leading up to his going out on extended sick pay had been extremely difficult and that his line Manager had bullied him. The Complainant was concerned about Health and Safety issues arising out of the practises being operated by P. The Complainant says that he suffered with extreme anxiety and took time off which became extended with the receipt of his benefit entitlements. The Complainant gave a full account of a very difficult time for him under the care of his GP. The Complainant conceded that he had not communicated any of these thoughts or difficulties with his line Manager’s Manager or with the HR department.
The Respondent HR witness CN stated that neither he nor his department had any idea that the Complainant was experiencing difficulties within the workplace. In addition, it has been asserted that any perceived Health and Safety issues are unwarranted and the Respondent has at all times operated a safe workplace. The Complainant accepts that he had made no issue of Health and safety matters while he was still in the workplace.
The Complainant tendered his resignation by email on the 16th of August 2019 – some two years after he had first gone out. It is noted that the resignation was to be …”.. effective from today”. The email is fulsome in its praise of his colleagues and the learning experience he had gained. I understand that this email was not solicited in any way and was given out of the blue and entirely voluntarily.
The Complainant then brought a Complaint of Constructive Dismissal which issued on the 31st of March 2020. This is seven and a half months after the fact of dismissal.
It is noted that the Complainant also brought complaints under other legislation. These were not pursued before me by the Complainant and do not, in fact, seem to be relevant to the Complainant who was never a fixed term employee and whose transfer from one Employer to the next was back i in 2016 was without any declared incident at that time.
The Complainant was asked to address the issue of the delay in issuing proceedings. The Complainant states that he had talked to a Solicitor but was not sure of the exact date/time. The Complainant indicated that he has difficulty organising his thoughts as a result of medication etc. However, there is a letter from the WRC sent directly to the Complainant on the 6th of January 2020 outlining the procedure for Constructive Dismissal. The Respondent have asked that I attach weight to the fact that the Complainant had communicated with the WRC independently of any Solicitor and within the six-month period after the termination of the employment. There is no reasonable explanation for the delay in issuing proceedings from that time.
The Respondent has challenged my jurisdiction to hear these complaints
The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates. In the case before me the complaints relating to Transfer of Undertaking must date back to 2016.
In addition, the Unfair Dismissal Act also requires the Complainant to show reasonable cause for a failure to submit an Unfair Dismissal Complaint within 6 months of the termination of employment (8(2)(b) of the 1977 Unfair Dismissals Act).
Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.
Delay and Reasonable Cause: The Labour Court, in Cementation Skanska v Carroll DWT0338 28/10/2003, considered the issue of “reasonable cause” in the context of a similar provision to S.41(8) contained in the Organisation of Working Time Act, 1997 Section 27(5): “Not withstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but not later than 12 months of such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause” The Labour Court stated: “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 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 case of Cementation Skanska -v- Carroll (Labour Court Determination DWT0338 (2003)) sets out the tests to be applied to determine whether “reasonable cause” has been shown and/or demonstrated such that allows for the extension of the Statutory time limit for the bringing of case ( for a period no greater that six further months). In this case the Labour Court stated that ”It is the Court’s view that in considering if reasonable cause exists: a) It is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. b) The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. c) 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. d) The Claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. e) 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. f) 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. g) Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise it’s discretion in favour of granting the 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 On balance I am satisfied that the Complainant has not been able to demonstrate to me that that the delay in issuing the claim is as a result of some reasonable cause which may be relied upon. No reasonable cause was adduced in evidence. In the circumstances I have no alternative other than rule these complaints to be out of time. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00035708-001 the Complaint issued after the expiration of the six month period running from the date of Constructive Dismissal and I therefore do not have the jurisdiction to hear it. Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 CA-00035708-002 – The Respondent declined to engage in a process under this Act Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00035708-003 The Complaint herein issued out of time Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00035708-004 The Complaint herein issued out of time Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) CA-00035708-005 The Complaint herein issued out of time Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00035708-006 The Complaint herein issued out of time
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Dated: 29th September 2020
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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