Complainant

Respondent

Anonymised Parties

A Sales Representative

A Technology Sales Company

Representatives

Not represented

Harriet Meagher BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036464-001

31/05/2020

On January 22nd 2018, the complainant commenced employment with the respondent as a sales representative.  Her annual salary was €35,000.  On September 24th 2019, she was issued with a final written warning as a result of a breach of the company’s email policy.  She was dismissed on November 12th 2019 following a disciplinary investigation into 11 incidents of lateness the previous month.

While the complainant alleges that her dismissal was  unfair, she submitted a complaint under the Terms of Employment (Information) Act 1994.  On her e-complaint form, she said that she was not notified in writing of a change to her terms and conditions of employment.  In the detailed outline of her complaint, she explained that she thought she was entitled to three warnings about a breach of a policy, and that she only received only two, before being dismissed.

In the respondent’s written submission in advance of the hearing, three preliminary issues were raised:

1.  The complainant has not submitted her complaint against the correct legal entity.

2.  The time limit for submission of a complaint expired on May 12th 2020 and this complaint was submitted on May 31st.

3.  The complainant submitted a complaint under section 7 of the Terms of Employment (Information) Act 1994 and she has not explained what actions of her employer resulted in a breach of a provision of this Act.

1.  The Respondent is Incorrectly Named

On the e-complaint form which she sent to the WRC on May 31st 2020, the complainant made a minor omission in the legal title of the respondent consisting of the failure to include the words “Ireland” and “Limited” in the name of her employer.

Finding on the First Preliminary Issue

It is my view that no prejudice arises from this error and, from the name provided on the e-complaint form, it is clear to any reasonable person who the respondent is.  It is also clear to me that the complainant understands who her employer was, because she differentiated the name of the respondent from the name of the client company to which she was assigned during her employment.

2.  Time Limit for Submitting a Complaint

Section 6 of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication:

“…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.”

An extension of time is provided for at subsection 8 of this section:

“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.”

It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” an extension of the time limit from six months to 12 months for submitting a complaint may be permitted.  This complaint was submitted 19 days outside the six-month time limit.

On her e-complaint form, the complainant acknowledged that her complaint was submitted after the time limit when she said,

“I might be a few weeks late with this complaint but in the past months I’ve been busy with finding a job and adjust to the lockdown.  I hope you can consider the complaint.”

At the hearing, the complainant said that she didn’t submit her complaint within six months of her dismissal because she was depressed and she felt a need to leave Ireland.  She went to stay with her sister in England.  She said that she was “adjusting to the lockdown” and that it took her a while to “get back on my feet.”  When she returned to Ireland, she had to look for a place to stay and then she had to look for a job.

On behalf of the respondent, Ms Meagher referred to a number of legal precedents where the issue of the time limit for submitting a complaint was addressed:

University Hospital Waterford v McPartlan [2019] 4 JIEC 2401, PDD 194

Relying on the test formulated by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT 0338, in the McPartlan case, the Court found that the complainant’s ignorance of the law was the “operative cause” for her submitting her complaint outside the legal time limit and that this was not a justifiable excuse for the delay.

Minister for Jobs Enterprise and Innovation v McLoughlin [2020] 2 JIEC 1224, PDD 203

The complainant submitted that he delayed filing his complaints because he was engaged in mediation to seek a resolution.  The Court found that this did not explain the delay of three months and that it did not afford an excuse for the delay. 

Ms Meagher summarised the principles established by the precedents:  First, the onus is on the complainant to identify the reason for the delay and to show that this provides a justifiable excuse for the delay.  Secondly, the complainant must establish a causal link between the reason proffered and the failure to present the complaint on time.  Thirdly, as the adjudicator of this complaint, I must be satisfied that the complainant would have presented the complaint on time were it not for the factors relied upon to explain the cause of the delay.

Finding on the Second Preliminary Issue

The complainant is a Romanian national and, while she is a fluent English speaker, she is not familiar with employment law.  On the form on which she submitted her complaint to the WRC, she made three basic mistakes; she did not provide the proper legal name of her employer, she was late submitting her complaint and she did not identify the correct legislation to have her complaint adjudicated on.  My concern here is with the delay of more than six months before this complaint was submitted.

At the hearing, the complainant said that, following her dismissal, she felt hurt and depressed and she went to stay with her sister in England.  When she returned to Ireland, it took her a while to adjust to the lockdown and she had to look for somewhere to stay and then she had to find another job.  In this regard, it strikes me that the complainant was in the same predicament as most people would be in her situation; she was hurt and depressed and she wanted to get away.  I am satisfied that the complainant was not so depressed that she had to seek medical advice, and she provided no evidence to this effect.  Her reaction of being hurt and depressed was perfectly normal, but not, in my view, an adequate explanation for failing to submit a complaint on time.

When she returned to Ireland, the complainant said that it took her some time to adjust to the lockdown and she had to find a job and a new place to stay.  It seems to me that the first reaction of the complainant when she was dismissed was to travel to England to stay with her sister.  At the hearing, I learned that the complainant was accompanied by a colleague at the meeting that resulted in her dismissal.  This person is an Irish national and, if she had been asked, she could have advised the complainant where to go to look for advice.  Also, information about what to do if you have lost your job is available on the website of the Workplace Relations Commission and the Citizens Information Centres, with specific advice about the time limits for submitting a complaint.  The complainant is familiar with IT systems, and even from the distance of her sister’s home in England, with the use of a mobile phone, she could have submitted a complaint to the WRC within the six-month time limit. 

It is my view that the explanation given by the complainant for not submitting this complaint before the expiry of six months is not a reasonable excuse for the delay.  I find also that there is no causal link between her explanation and the delay, because, although she was in England feeling hurt and depressed, she could have submitted a complaint to the WRC.

I accept that looking for alternative accommodation and a new job must have taken some time; however, if she was serious about challenging her employer’s decision to dismiss her, it is my view that the complainant would have made time to submit a complaint.  I agree with Ms Meagher, that the complainant has not reached the third limb of the test established by the legal precedents, and she has not established that, were it not for the issues that she relies on to explain the delay, she would have presented her complaint on time.  Having considered this matter, it is my view that the “reasonable cause” condition set out at section 41(8) of the Workplace Relations Act must be interpreted as not associated with a reasonable person’s reaction to being dismissed or the challenges of ordinary life, even in the time of a pandemic.

As I have concluded that the complainant has not established a reasonable cause for the delay submitting her complainant outside the six-month time limit, I do not intend to address the third preliminary issue, the fact that her complaint is submitted under the wrong statute.

I have concluded that there was no reasonable cause for the complainant submitting her complaint outside the legal time limit.  I decide therefore, that I have no jurisdiction to adjudicate on this complaint.

Complaint is outside the six-month time limit.