Complainant

Respondent

Anonymised Parties

Driver

Fuel Provider

Representatives

Mr. Edward Murray BL, instructed by McDonnell Solicitors

Ms. Rosemary Mallon BL, instructed by Philip Lee Solicitors

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-00033392-001

22/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00033392-002

22/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00033392-003

22/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00033392-004

22/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00033392-005

22/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033392-006

22/12/2019

The Complainant commenced employment with the Respondent on 3rd June 2008. At all times his role was described as that of “driver”.  Throughout the currency of his employment, the Complainant was a full-time, permanent employee. He was paid on a weekly basis, with the Complainant stating that his average weekly pay was €731.00. On the 11th January 2019, the Complainant’s employment was terminated by way of resignation.

On 22nd December 2019 the Complainant lodged the present complaints with the Commission. Having regard to his agreed termination date, these complaints were lodged 11 months and 12 days after the Complainant’s final day of work.

A hearing in relation to these complains was convened for 28th January 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. In advance of the hearing both parties issued substantial written submissions. The Complainant’s representative called two witnesses to give evidence; the Complainant himself and his General Practitioner. Both witnesses were cross examined by the Respondent’s representative.

In advance of the hearing, the Respondent’s representative raised numerous preliminary issues as to my jurisdiction to hear the present complaints. In particular, it was submitted that the complaints under the Unfair Dismissals Acts, the Organisation of Working Time Act, the Payment of Wages Act and the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations were statute barred as they had been lodged in excess of six months from the date of the alleged breaches. It was further submitted that the complaint under the National Minimum Wage Act was improperly constituted and could not proceed.

By response, the Complainant submitted that he could demonstrate “reasonable cause” to permit an extension of the consignable period and consequently render the complaints in time. He further denied that the complaint under the National Minimum Wages Act was improperly constituted.

In circumstances whereby the Unfair Dismissals Acts, the Organisation of Working Time Act, the Payment of Wages Act and the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations all contain the same requirement to demonstrate “reasonable cause”, these matters were all considered as part of the same preliminary application. The issue regarding the constitution of the complaint under the National Minimum Wage Act was dealt with as a separate point.

The Complainant, through his representative, submitted that he had suffered intolerable working conditions that had a severe and detrimental effect on his physical and mental health.  He submitted that this ill-health prevented him from lodging the complaint in the months immediately following his resignation. In support of this contention the Complainant opened a medical report dated 8th January 2020.

In direct evidence, the Complainant stated that he had suffered significant mental health issues following the termination of his employment with the Respondent. He stated that following the termination of his employment he began to feel better, but that this was a gradual process. He stated that shortly prior to lodging the present complaint, he received a call regarding an issue regarding a former colleague. Shortly after taking this call, the Complainant was reminded of the poor treatment he had received at the hand of the Respondent and at this point he felt that his mental health had improved to the point whereby he could instigate the present claim.

In answer to a question put to him in cross examination, the Complainant accepted that he had accepted and commenced a new role shortly after leaving employment with the Respondent. He stated that had to be in employment due to various commitments and that he felt well enough to take this role as the source of his poor mental was the conditions of his previous employment. When asked if the issues the Complainant experienced prevented him from instructing his solicitor within six months from the date of termination, the Complainant stated that the impact on his mental health was significant, and it was only following medical intervention that he felt able to instigate the proceedings. In answer to a further question, the Complainant accepted that he was not referred to a specialist for these issues. When asked about the content of the medical report, particularly the statement that he returned to “normal” within 6-8 months of leaving his employment, the Complainant stated that his recovery was a gradual process and he could not identify one day during which he felt well enough to submit the complainant.

In support of the Complainant’s case, he also called his GP to give evidence. The Complainant’s GP stated that had treated him for an anxiety condition arising from his conditions of employment. He stated that the symptoms experienced were subjective to each person but were at their most extreme in or around the time of the Complainant’s resignation. The Complainant’s GP’s stated that following the termination of his employment he gradually began to feel better to the extent that he was a different man following the termination.

In answer to a question put to him in cross examination, the Complainant’s GP confirmed that he had four appointments with him; on 9th November 2018, 25th April 2019, 28th June 2019 and 30th December 2019. He confirmed that not all of these appointments related to an anxiety conditions but may have been related to the Complainant’s general health. He confirmed that the Complainant was not referred to a specialist or was not hospitalised at any stage. In answer to a question, the Complainant’s GP stated that the Complainant was on the road to recovery from January 2019 onwards. The GP agreed that in January 2019, his health would allow him to work in a different job. He stated that six to eight months after the termination of employment, the Complainant was back to his normal. When pressed on these dates, the Complainant’s GP stated that he would have returned to his normal state of health by August 2019.

By submission the Complainant’s representative submitted that the Complainant could not initiate his claim within 6 months of the date of termination due to ongoing ill health. He stated that the medical report submitted into evidence demonstrated the severity of the distress inflicted upon the Complainant. The Complainant’s representative submitted that the Complainant had clearly demonstrated a reasonable cause for the delay. It was further submitted that a direct causal link had been established between the Complainant’s medical issue and the delay in instituting the present proceedings.   

By response, the Respondent’s representative submitted that the Complainant had not demonstrated that existence of reasonable cause to extend the consignable period for the complaints.   

It was submitted that the medical issues complained of did not actually prevent the Complainant from lodging the complaint within the initial six-month period. In support of this submission, the representative for the Respondent relied on the fact that the Complainant was never referred to a specialist or was hospitalised for this condition. The fact that the Complainant was able to seek out, apply for and undertake a new employment during the period in which he alleged he was unable to submit a claim form or instruct his solicitors was submitted as further evidence in support of this submission.

In addition to the same, the Respondent submitted that the Complainant’s medical condition did not account for the entirety of the delay. In particular, the Respondent’s representative pointed to the fact that the medical report submitted by the Complainant stated that the medical condition had resolved within 6-8 months following his termination. Given that there was a delay of over eleven months in instigating the complaint, it was submitted that the rationale for extension offered by the Complainant did not extend to the final three months. The Respondent also relied upon the evidence of the Complainant’s GP, particularly his statement that the condition had resolved by August 2019 in support of this contention.

Section 6(6) of the Workplace Relations Act 2015 provides that,

“…an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 6(8) provides that,

“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.”

The established test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. 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 noted that this test is well-established, uncontroversial and relied upon by both parties in their written submissions.

In the recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It 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 complaint would have been presented 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. “

It is the position of the Complainant that a medical condition experienced in 2019 accounted for the delay in instigating the proceedings.  In this regard, I note that the medical report entered into evidence by the Complainant states that following the termination of the Complainant’ employment, “it took him 6-8 months to come back to his normal.” The Complainant’s GP expanded upon this statement in direct evidence stating that the Complainant’s condition had greatly improved some seven months following his dismissal. Given that the Complainant’s employment terminated in January 2019, it is evident that the medical condition experienced earlier in the year had ceased to cause him difficulty by September 2019 at the latest. In circumstances whereby the Complainant failed to institute the present proceedings until 22nd December 2019, there is a period of approximately three months where the medical condition cannot have prevented the lodgement of proceedings. Indeed, in his own direct evidence, the Complainant stated that he instigated proceedings on this date, not due to a recovery from the aforementioned medical condition, but following a conversation with his former employer.

Having regard to the foregoing, I find that the Complainant has failed to demonstrate “reasonable cause” as required by the Act. In particular, I find that the Complaint has failed to demonstrate a causal connection between the reason cited for the delay, and the entirety of the delay.

At the out set of the hearing, the Respondent submitted that the Complaint had not complied with the statutory obligations required to lawfully refer a complaint under the Act. In particular, they submitted that the Complainant had sought a statement of wages for an impermissible period of time of time. They further stated that this statement was sought on the 19th December 2019, some three days prior to lodging the present complaint.  In these circumstances, it was submitted that the complaint was not properly constituted for the purposes of the Act, and consequently the matter could not proceed.

By response, the Complainant submitted that the complainant was correctly constituted and could proceed. It was denied that the pay reference period sought related to an incorrect period of time. Whilst it was accepted that Section 10 if the Act provides that a pay reference period must be no longer than one calendar month, and the reference period actually request related to one year, it was submitted that reference period is easily divided into month long periods and that the Respondent was in possession of all relevant materials to do so.

Regarding the second issue, the Complainant opened the Labour Court decision of Mansion House Limited -v- Jose Izquierdo MWD043. They submitted that in a situation whereby a party has not allowed the directed period of time to elapse between requesting a statement of wages and lodging the complaint, the complaint may proceed without prejudice to the same, if the required period of time has actually elapsed.

The National Minimum Wage Act prescribes and number of steps that must be complied with prior to an Adjudicator Officer accepting jurisdiction to determine a dispute. 

In this regard, Section 24(2) of the Act provides that,

“The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee's entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—

(a) unless the employee—

(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information”

Section 23 of the Act provides that,

“(1) Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12-month period immediately preceding the request.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee's request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1 of Schedule 1,

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) actually paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

In the case of Mansion House Limited -v- Jose Izquierdo MWD043, opened by the Complainant, the Labour Court stated that,

“…where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimant’s right to re-enter the same complaint having complied with the said section…”.

In the present case, it is agreed that the Complainant issued a request for a statement of earnings on 19th December 2019. Three days later, on 22nd December 2019, the Complainant lodged the present complaint with the Commission in the absence of any response from the Respondent.

In the circumstances, it is clear that the Complainant has not complied with Section 24(2)(a)(ii) of the National Minimum Wage Act. Notwithstanding the same, the Complainant’s representative submitted that the matter should proceed as the required period of time had elapsed by the date of the hearing.

Having carefully considered this submission, I do not find in the Complainant’s favour. Section 24 is explicit in its requirement that a matter cannot proceed “unless” the Complainant had either received the statement or having requested the same, allowing the requisite amount of time to elapse. As in the matter referred to above, I find that the appropriate course of action in these circumstances is to decline jurisdiction without prejudice to re-enter the same complaint.

CA-00033392-001 – Complainant under the Unfair Dismissals Acts

I find that the Complainant has failed to comply with the relevant time limits for submission of his complaint provided for within Section 8(2) of the Unfair Dismissal Acts 1977-2015. Accordingly, I do not have jurisdiction to inquire into this complaint.

CA-00033392-002 – Complaint under the Organisation of Working Time Act

I find that the Complainant has failed to comply with the relevant time limits for submission of his complaint. Accordingly, I do not have jurisdiction to inquire into this complaint.

CA-00033392-003 – Complaint under the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

I find that the Complainant has failed to comply with the relevant time limits for submission of his complaint. Accordingly, I do not have jurisdiction to inquire into this complaint.

CA-00033392-004 – Complaint under the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

I find that the Complainant has failed to comply with the relevant time limits for submission of his complaint. Accordingly, I do not have jurisdiction to inquire into this complaint.

CA-00033392-005- Complaint under the National Minimum Wage Act

I find that I do not have jurisdiction to hear the complaint.

CA-00033392-006 – Complaint under the Payment of Wages Act

I find that the Complainant has failed to comply with the relevant time limits for submission of his complaint. Accordingly, I do not have jurisdiction to inquire into this complaint.

Time Limit, Statute Barred, Reasonable Cause, Medical, Causal Link