ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027661
Parties:
| Complainant | Respondent |
Parties | Thomas Duffy | Pallas Foods |
Representatives | Mary Duffy King | David McCarroll Ronan Daly Jermyn Solicitors |
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-00035640-001 | 25/03/2020 |
Date of Adjudication Hearing: 09/04/2021
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. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year (as is a requirement of the Act) and where the Workplace Relations Complaint Form is dated the 25th of March 2021.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
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. “
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”.
Background:
The Complainant has brought a claim that he was Unfairly Dismissed on the 25th of September 2019 when his Employment was terminated summarily at the conclusion of an Investigative and Disciplinary process which was initiated in response to certain purported actions on the part of the Complainant. The Workplace Relations Complaint Form is dated the 25th of March 2020. |
Summary of Complainant’s Case:
The Complainant was accompanied and assisted by a retired Union official. The Complainant believes he was Unfairly Dismissed when his employment was terminated at the end of an internal Investigative and Disciplinary process. The Complainant provided me with a post-hearing submission on the issue of reasonable cause. |
Summary of Respondent’s Case:
The Respondent was legally represented, and I was provided with a comprehensive legal submission including a preliminary issue as to timing and time limits. The Respondent stands over it’s decision to terminate the employment. The Respondent was given the opportunity to reply to the Complainant’s post-hearing submission made on the issue of reasonable cause. |
Findings and Conclusions:
I have carefully considered the evidence heard in the course of this hearing. The Respondent has raised a preliminary issue which needed to be addresses before the substantive case was proceeded with. In particular, the Respondent has asked me to consider the application of the time limits as set out in the Workplace Relations Act 2015 and specifically 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. “ As previously stated, 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.
It has been submitted that the six month period in this instance must commence on the 25th of September 2019 as this is the date of the termination of the employment and the six month period begins on the date of the contravention to which the complaint relates. It is long established that the method for calculating a six month period from a given start date will bring us to the date of the 24th of March 2020. The six month period expires on that date. This means that the Workplace Relations Complaint Form issued one day late on the 25th of March 2020. The Complaint Form was “presented to the Director General” (as required by the Act) one day late.
It is well established that it matters not if the Complaint issues one day late or one month late or five months late - the onus is on the Complainant to establish that the failure to present the complaint or refer the dispute within that (six month) period was due to reasonable cause.
I accept that the Labour Court has set out the appropriate test in the case of Cementation Skanska v Carroll DWT0338 28/10/2003, wherein that Court 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 and 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.”It is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The Respondent has invited me to find that the Complainant has not satisfied the requirement that he demonstrate that the failure to present the complaint within that period was due to reasonable cause. Both the Complainant and the Respondent put up vociferous argument on the issue and I would like to thank the parties for providing me with supplemental written submissions after the hearing and in furtherance of their own positions. I fully appreciate that the Complainant was going through some personal difficulties (not least of which was possibly the termination of his employment), for an extended period after he was dismissed. Both ill health and marital difficulties have also been cited. That said it has not been explained how either of these difficulties caused the failure to bring the claim. There is a stark lack of medical evidence which might have suggested that the Complainant had been too unwell or physically incapable. Equally, the breakdown of the marriage, whilst regrettable, has not been shown to have been a causal factor in the Complainant’s failure to present the claim in the six month period. I have been asked by the Respondent to keep in mind that at least two months prior to the expiration of the statutory period the Complainant was engaged in the process of having actively engaged representation and was actively looking to appeal the decision to dismiss (using the internal process). This request was rejected by the middle of February 2020. The Complainant therefore knew this outcome well within the six-month time period and had the opportunity to issue his complaint at that time. It should be pointed out that the case of McEvoy -v- Business Mobile Security SERvices Limited t/a Seneca (EDA 1621) was considered by the parties. This Labour Court decision in fact disallows a complainant to rely on delays in the processing of the Employer’s internal processes (in that case (McEvoy) the Appeal process) as somehow creating a reasonable cause for a delay in submitting a complaint. In any event, as previously stated, there was still time to run at the end of the Employer’s Internal Process, Additionally, it has been pointed out that the Complainant had also engaged in email correspondence with the Respondent in October 2019. The Complainant has additionally put forward the proposition that he had understood that he had up to 12 months to lodge a complaint after the act of dismissal. I have no option other than to follow the High Court when it found in the case of Minister for Finance -v- CPSU and Ors [2007] 18 ELR 36 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 the statutory time limit.” The Complainant’s representative has made the case that the arrival of the Covid Pandemic gave rise to unusual circumstances which resulted in a disruption to communication, a slowness to instruct and a delay in getting a complaint issued. On this, I am inclined to accept the Respondent’s assertion that the actual timeline does not allow me to see the nationwide reaction to Covid as having caused a delay to the making of an application either online or through the postal service (which service never stopped operating). There has been no suspension of time limitations in consequence of Covid and therefore Section 41(6 continues to be operable. In light of the above I cannot find that the Complainant has is satisfied me, as the Adjudication Officer, that the failure to present the complaint or refer the dispute within that (six-month) period was due to reasonable cause.
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Decision:
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-00035640-001 – The Complaint fails in circumstances where the complaint issued outside the time allowed by the Unfair Dismissals Statutes.
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Dated: 12th August 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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