Complainant

Respondent

Parties

Johnathan  Owen

Homedel Trans Direct Limited 

Representatives

James Lawless B.L. instructed by Tim Kennelly Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00039229-001

18/08/2020

The Complainant was employed by the respondent as an installation engineer and commenced his employment with the respondent on October 29th, 2018.

He worked there up until his employment terminated at the end of October 2019 (the precise date is in dispute).

The complainant brings a claim for unfair dismissal and says his employment was terminated without any consultation, notice or engagement.

He also says that at no stage of his employment was he given a written contract and he did not know what procedures in relation to the ending of his employment.

He says his employment was terminated for reasons unconnected with his performance and

due to the fact that he sought payment for additional hours worked including overtime,

and a refund of deductions made.

The Complainant was paid a net rate of €550 per week.

Initially his weekly wage was s e t at €600 per week, however the respondent made a deduction of €50 per week for the use of the company van. The company van was in fact essential for the Complainant's employment. The deductions total €2,600.

His basic hours were 7.30am until 5pm, however he often worked from 7am until 9pm and was never paid overtime or any additional reward.

Further to the dismissal by the respondent, the Complainant was out of work for over a year, before eventually securing alternative employment in a similar role elsewhere.

Preliminary Issues

It is anticipated that the respondent may seek to challenge the claim on the grounds that the complainant did not make the complaint to the WRC within six months of the date of dismissal and/or that the Complainant did not have one year's service.

The complaint was filed with the WRC on 18th, August 2020, just over nine months after what is now understood to have been the date of dismissal.

However, on the date of dismissal, the respondent did not clearly communicate to the complainant that he was being dismissed. The respondent advised the complainant not to attend work for a while and that he would give him a call to return when he was needed again.

There was no written or oral termination provided.

The Complainant was accordingly unclear for some time as to what exactly his employment status was with the Respondent.

Furthermore, on or around the same time as the dismissal, the respondent sought to discourage the complainant from making a complaint or taking any action against him.

The Covid-19 pandemic also accelerated within a few months of the dismissal, leading the complainant to understand that all normal services were shut and unavailable.

The complainant lived at the time with his elderly father, a vulnerable person with various conditions, and did not want to invite harm upon the house, either through retaliation from the respondent or by leaving his 5km zone to instigate a complaint.

For all the above reasons the complainant did not formally file a complaint with the WRC until August 2020 (rather than April 2020 which would be six months after).

It is submitted that the conduct of the respondent including threats against the Complainant bringing an action, along with initial ambiguity as to the complainant’s ongoing employment status, all debar the respondent from seeking to rely on same.

In terms of the one year's service, it is the complainant's case that he was dismissed by telephone call on the 30th, October, effective from the following day, Halloween 31st October 2019.

It is also noted that the respondent appears to rely on a payroll inventory, how ever this shows the complainant receiving a final wage payment on the 8th,November 2019.

This is consistent with the complainant's position that he worked a week in advance, thereby qualifying for a double payment upon one week's final notice, yielding an effective date of dismissal as being 31st October 2019 / 1st November 2019.

Without prejudice to any of the above it is submitted that by seeking payment for overtime and additional hours worked, frequently to the level of twenty-four hours a week, his effective rate of pay was less than the National Minimum Wage.

It is possible to bring a complaint where the dismissal relates to a claim having been made under the National Minimum Wage Act even where there is less than one year’s service.

The respondent replied to some of the issues alleged by the complainant, and specifically stated that the termination of the employment was a redundancy that was entirely attributable to trading issues and the loss of a commercial contract.

Four employees in total were let go at the same time as the complainant due to the loss of the contract.

Insofar as the date of the notice of termination of the employment is concerned, he says that it was clearly October 23rd, 2019, and that this notice expired one week later.

Any payments made to the complainant after that arose from annual leave not taken which was payable on termination and which took longer to finalise.

There are two preliminary issues.

The first is whether the complainant had the necessary service to make a complaint under the Unfair Dismissals Act (one year, in general), or whether he falls within the exceptions to this requirement, and also whether the complaint was made within the prescribed time limits. 

Before turning to those issues, a full hearing of all the issues took place on the basis that if the jurisdictional issue were decided in the complainant’s favour, a decision could then be issued on the substantive matter without the necessity to bring the parties back for a second hearing.

This is the general practice of the WRC unless the specific circumstances of the case require a different approach.

The first question that arises is the date on which the employment terminated.

The complainant sought to infer that there was some uncertainty about this, and that his employment relationship persisted for some time after the ending of the regular employment relationship at the end of October 2019.

His evidence on this point was thoroughly unconvincing, and he eventually reluctantly conceded that the employment relationship did terminate on the date claimed by the respondent.

While he said that he ‘believed’ that there might be more work, and the respondent confirmed that he did make a comment suggesting there could be, this did not represent a continuation of the contract of employment as the complainant sought to suggest, nor did it prolong that employment to a point which brought it within the service requirements of the Unfair Dismissals Act.

The commercial considerations which brought the termination about were significant and not disputed and there was nothing arbitrary about the selection of the complainant (and three other employees) for redundancy.

I find that he last worked for the respondent on October 23rd, and that his period of notice expired on October 30th, 2019, which is the date his employment ended, and which leaves him just short of the necessary service.

However, he faces a similar, if not greater obstacle in relation to the failure to make the complaint within the six months’ time limit.

He makes two submissions on this point.

The first is that he was dismissed by way of an act of penalisation for making a complaint under the National Minimum Wage Act. Unfortunately for this argument he could produce no evidence of ever having raised such an issue.

The respondent’s evidence was that the complainant had never raised either his hours, or wage rates and disputed the complainant’s assertion that he worked the excessive hours he was claiming. In particular the claim that he was working late at night installing equipment in domestic premises was challenged and the complainant’s submission on this point lacked credibility.

There was a further claim that the delay resulted due to the fact that the complainant could not have a personal consultation with his solicitor because of the public health restrictions related to the pandemic.

This rang somewhat hollow in the course of an adjudication hearing being conducted on-line, and he had many options to consult his solicitor that did not involve exposure to the risk of Covid-19.  

He also said he thought the WRC would not be operational for the same reason, and this is no argument at all; the onus fell on him to establish whether or not it was.

The test to be applied in extension of time applications under the Acts, is that formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and in other cases.

It might be referred to as the ‘Explain and Excuse’ Test.

“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.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

            “It is 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 the complaint 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. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The complaint was made nine months after the termination of his employment.

He has not come remotely close to either explaining or excusing his failure to submit his complaint within the time limits to the standard required by the authorities above (and there are many others in similar vein).

Accordingly, by reference to any of the possible grounds (in fact all, although it only requires one) the complaint is not within jurisdiction and is not well founded.

For the reasons set out above complaint CA-00039229 is not well founded.

Jurisdiction; time limits, eligibility.