Complainant

Respondent

Anonymised Parties

A Lecturer

A third level institution

Representatives

Francis Drumm, BL instructed by Martin Farrelly and Associates Solicitors

Peter Flood, IBEC

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-00036579-001

07/06/2020

The complainant commenced employment with the Government Department on the 17th December 1984 and resigned on the 21st June 2019. He was paid €1,408 per fortnight. From 2002, he was seconded by an agency of the Government Department to the respondent third level institution to lecture in a specialised role. The complainant outlined that he was constructively dismissed. The respondent indicated that the complaint was not referred within the required statutory time period.

The complainant was an employee of the Government Department and seconded on a reduced commitment to a third level institution. He was asked to do additional work and he sought additional pay for this. There were some conversations between the Department and the third level institution to cover a pay increase. He raised his issues with the third level institution, who said that he was not their employee and that it was a matter for the Department. He resigned his employment, and this complaint relates to constructive dismissal.

The complainant dealt with the then head of school and raised these issues with HR in 2007. He commenced a grievance procedure at Stage 2. In 2014, the third level institution liaised on the complainant’s behalf with the Department.

The complainant outlined that his employment finished on the 21st June 2019 and this was in a ‘complicated’ employment situation. He took advice and sought to address this informally with both the Department and the third level institution. He wrote to them from November through February. He had chosen to work part-time for family reasons but was actually working full-time hours. The third level institution would not respond to him.

In January, the complainant had an episode of illness and was in hospital for 10 days. He had two months of convalescence and then sought to raise the matter with the WRC. He used the phone line of the WRC and learnt of the time limit around the ‘cusp’ of the 6-month period. He was not then taking legal advice. This was new territory for him, and his employment situation was complex.

In September 2019, the complainant started a tutor role on a sessional basis, visiting students on placement. This involved meeting four students in their placement. He visited each student on three occasions, totaling 24 hours over four months. This was part-time and paid €400 gross per student. He had done this again in January 2020 and this has now finished.

The complainant submitted that there is reasonable cause in his case. He did not have the benefit of legal advice and was ill for some time. He said that time should be extended. The CementationSkanskav Carroll DWT 0338 authority provided that reasonable cause was a lower requirement than exceptional circumstances. It was also relevant also to ask whether the respondent would suffer any prejudice. In this case, the complainant had engaged internal procedures and had attempted to solve the issue. The complainant must also act reasonably as required by Conway v Ulster Bank UD474/1991. In McEvoy v Business Mobile Security Services EDA 1612, an extension of time was not granted but there is no requirement here for a witness to recollect evidence as all the correspondence was clear.

In cross-examination by counsel for the Department, the complainant accepted that he was contemplating resignation for a number of months. He wrote to a union prior to the resignation but no one was available to help. He was trying to figure a way out of this unsustainable employment. He was not consulted in the review in May and this was littered with errors. The complainant said that this was a stressful and complex situation. While he had availed of the procedures, this came to nothing. He had worked in the role from 2002 to 2014 in a sustainable way, but resources were then reduced by one-third and this became unsustainable.

The complainant accepted that the third level institution had given their reply in March 2019. He said that he was working too many hours and sought additional pay from the Department. He stopped out of a sense of decency and thought that this would be resolved by a human encounter with the Department, in particular as he was a highly respected employee. It was put to the complainant that there was nothing stopping him bringing a claim within the six months, but he had decided not to bring a claim; he replied that he had decided not to bring a complaint. He became aware of the time limit on contacting the WRC and this was a complex situation. It is with regret that he had to take this case and that it would be unnecessary as he had sought to engage the respondents. It was put to the complainant that he had decided to take an alternative route and took these proceedings when this was not successful; he replied that he followed up by contacting the head of school.

The complainant outlined that the respondent had advanced a technical legal argument, but nobody was prejudiced by the date of submission of the complaint. He outlined that discretion should be exercised in favour of allowing the claim to proceed, relying on the Skanska decision of the Labour Court. He submitted that the standard is now lower than ‘exceptional circumstances’.

The respondent outlined that the claimant had said that he was aware of the time limit when the period was coming to an end. The respondent asked why did he not pursue a claim then? The time limit ended in December and before he became sick. The respondent outlined that it had been clear that they had exhausted their discussions with the Department. The complainant was aware of third level institution’s position and he could have then brought a claim. Not having legal advice is not a basis to extend time. He should have immediately lodged the claim on knowing of the time limit, but he did not do so. The complainant wrote to the third level institution in November and it was already clear what their position was and there was nothing stopping him pursuing a complaint. There was no justification for the delay and the length of delay, in this case 5.5 months. The reasons do not justify the delay especially as he was aware of the time limits. The respondent submitted that there was no reasonable cause in this case.

The complainant was a longstanding and respected employee of the Government Department. He was seconded to a third level institution, where he lectured in the field he had worked in for many years. It is not disputed that his employment ended on the 21st June 2019. It is also not disputed that this is the relevant date of contravention for a complaint pursuant to the Unfair Dismissals Act.

Section 8(2) of the Unfair Dismissals Act provides:

‘(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.’

‘Reasonable cause’ in section 41(8) of the Workplace Relations Act is worded slightly differently:

‘(8) 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 difference is the Unfair Dismissals Act refers to the complainant being ‘prevented due to reasonable cause’, while the Workplace Relations Act refers only to ‘due to reasonable cause’ and makes no reference to prevention.

I do not think that the slightly different wording contained in these provisions result in there being two different tests of ‘reasonable cause’ to be applied, on one hand, to Unfair Dismissal claims and, on the other, to Workplace Relations Act complaints.

In reaching this finding, I note the legislative history of these provisions. The original Unfair Dismissals Act required that any complaint be made within 6 months of the dismissal, with no allowance for a late claim. This was amended in 1993 to allow for a late submission of a complaint where exceptional circumstances ‘prevented’ it being made in time.

The provision was again amended in 2015, lowering the requirement on a complainant from ‘exceptional circumstances’ to ‘reasonable cause’. This was, of course, part of the consolidation introduced by the Workplace Relations Act across the broad sphere of employment and equality law. Prior to 2015 ‘reasonable cause’ was the standard in many employment and equality statutes other than the Unfair Dismissals Act.

If the Oireachtas had intended in 2015 that a higher standard apply to unfair dismissal cases as compared to other employment complaints, surely it would have used a term other than ‘reasonable cause’ to convey this, by, for example, retaining ‘exceptional circumstances’ or by using some other phrase, say ‘substantial cause’ or specifying additional criteria to have regard to, for example prior knowledge or prejudice (as introduced in 2004 to section 21(3) of the Equal Status Acts).

I find that the inclusion of the word ‘prevented’ in the amended section 8(2) of the Unfair Dismissals Act is more likely a vestige of the previous formulation of the section than a more onerous requirement in establishing reasonable cause.

In any event, this makes no difference to the outcome of this case. The Skanska authority has been the established interpretation of ‘reasonable cause’ for close to 20 years. A late claimant is required to set out circumstances that explains and excuses their delay. How late a complaint is submitted is a relevant consideration.

In Skanska, the Labour Court held:

‘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.’

I appreciate that the complainant did all he could to avoid making a claim against his long-term employer and the third-level institution. However, I do not believe that he has shown reasonable cause for the late submission of the complaint.

First, the details of the alleged contravention were always clear to him. This was the date of his resignation. Second, the complainant’s resignation stemmed from a longstanding difference between him and the third level institution. His resignation was preceded by a completed grievance process and the intervention of the Department.

Third, there was substantial correspondence between the parties in the months after the ending of the complainant’s employment. When this was not yielding success, one would expect the complainant to then refer the complaint to the Workplace Relations Commission. Fourth, I note that he was in touch with the Workplace Relations Commission in or around the end of the six-month period, so could have had a claim within time or close to the expiry of the period.

Fifth, the complaint was only submitted close to the end of the maximum 12-month period, so requires more cogent reasons than a short delay. Sixth, while I accept that the respondent does not face prejudice if the claim were to proceed, Skanska suggests that prejudice should only be considered when reasonable cause has been established. However, even taking prejudice as something to consider as part of reasonable cause, I do not think that the absence of prejudice excuses the length of delay in this case.

Sixth, I appreciate that the complainant was sick for some time, but I do not think that the duration and extent of the illness sufficiently explains and excuses the lengthy delay. In reaching this finding, I note that all the complainant is required to do is to fill in and submit an online complaint form, which they can submit for free, at any time and from any location.

Ultimately, the Oireachtas required would-be complainants to initiate proceedings within six months of the date of an alleged contravention. A complaint can be submitted within a further six months, but only where reasonable cause is shown. For the reasons set out above, I find that the complainant has not established that the late submission of the complaint was prevented due to reasonable cause. It follows that I do not have jurisdiction to decide the complaint pursuant to the Unfair Dismissals Act as it was not submitted within time and the late submission of the complaint was not prevented due to reasonable cause.

CA-00036579-001

I decide that I do not have jurisdiction to decide the complaint pursuant to the Unfair Dismissals Act as it was not submitted within time and the late submission of the complaint was not prevented due to reasonable cause.

Unfair Dismissals Act / section 8 / ‘reasonable cause’