Complainant

Respondent

Parties

Muzikayise  Nxumalo

Cora Residential Care Limited Steppingstone

Representatives

 Crushell & Co Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00039810-001

14/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 8 of the European Communities (Working Conditions of Mobile Workers engaged inInteroperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of

CA-00039810-002

14/09/2020

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

CA-00039810-003

14/09/2020

The complainant had been employed as a Health Care Assistant by the respondent in October 2019, but his employment terminated on January 16th, 2020.

The complaints were submitted on September 14th, 2020, just under eight months later.

This is outside the statutory time limit of six months, but within the twelve-month period in which reasonable cause for an extension of time may be advanced as a basis for bringing the complaints within jurisdiction.

Accordingly, this fell to be dealt with as a preliminary matter.

This was one of two sets of complaints submitted against the same employer under different trading names. (The decision in the other case may be found in ADJ 31838).

The complainant could offer no satisfactory explanation for the delay in submitting the complaints.

The respondent says that the complaints have not been made within the statutory time limits and are therefore not within jurisdiction.

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.

This may be referred to for convenience as the ‘Explain and Excuse’ test. The Court said.

“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, and largely repeating the dicta above 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.”

A similar decision was made in Department of Finance v IMPACT. [2005] E.L.R. 6.

There the Court held:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one, but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there were any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

In this case the complainant could meet neither limb of the ‘Explain and Excuse’ test and therefore I find that his complaint has not been made properly within the statutory time limits nor has he offered any explanation which would justify an extension.

Accordingly, I find that his complaints are not well-founded.

For the reasons set out above I find that complaints CA-00038910-001, 002 and 003 are not well-founded.

Time limits