DWT212

1.An Appealof anAdjudication Officer's Decision No(S)ADJ-00024868 CA-00031615-001

BACKGROUND:

2.The worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing in a virtual court room took place on 17 September 2020. The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is an appeal by Mr Laurence A Skelly (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00024868, dated 18 March 2020) under the Organisation of Working Time Act 1997 (‘the Act’). Notice of Appeal was received by the Court on 13 April 2020. The Court heard the appeal in a virtual courtroom on 17 September 2020.

Factual Matrix

It is common case that the Complainant was employed by Dublin City Council (‘the Respondent’) as a firefighter from 5 September 1988 until he retired on 5 November 2018. It is also common case that the Complainant referred the within complaint under the Act to the Workplace Relations Commission on 16 October 2019 i.e. over eleven months subsequent to the date of his retirement. The Adjudication Officer found that the complaint was statute-barred and that the Complainant had not established any reasonable cause for his delay in filing his complaint that would have permitted an extension of time beyond the statutory time-limit of six months. The substance of the complaint relates to the manner in which the Respondent calculated payment for the Complainant’s accrued annual leave outstanding on the date of his retirement.

Preliminary Issue

The Complainant submits that there are two grounds on which his application for an extension of time should be considered by the Court: (a) he engaged in a protracted internal process with the Respondent between the date on which the miscalculation of the payment for accrued annual leave came to his attention (16 November 2018) and the date on which he filed his complaint with the Workplace Relations Commission; and (b) he suffered from episodic PTSD at the time of, and subsequent to, his retirement which condition made it difficult for him to deal with within issues “as doing so acted as a trigger and contributed to an exacerbation of the illness”.

The Respondent submits that it is in agreement with the Adjudication Officer’s decision on the preliminary issue. It accepts that there were delays in the internal process engaged in by the Complainant due to the complexity of the issues involved but further submits that the Complainant was not thereby prevented from referring his complaint to the Workplace Relations Commission.

Discussion and Decision

This Court has consistently held that a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time-limit provided for generally in section 41 of the Workplace Relations Act (and in comparable provisions in other individual employment enactments) for the purpose of exhausting an alternative means of resolving their dispute does not constitute reasonable cause for the delay. One such decision in which the Court considered this matter isBusiness Mobile Security Services Limited T/A Seneca Limited T/A John McEvoyEDA1621. The Complainant/Appellant in that case had sought to apply for an extension of time on the basis that he had attempted to resolve his dispute through the Respondent’s established internal procedures. The Court held that the Complainant had not thereby established reasonable cause for his delay:

• “The Court finds that the issues that arose in the course of those meetings were in the nature of industrial relations grievances that contained no indication that a complaint under the Act was either imminent or in contemplation. They amounted to an alternative way of resolving the issues in dispute and did not form part of a procedure that acted as a prelude to commencing a complaint under the Act. Instead the Complainant decided to forego the option of proceeding under the Act and instead chose to try to settle the matters in dispute through other means. When that did not work out to his satisfaction he then sought to rely on his choice to justify the delay in bring proceedings under the Act.”

Having considered carefully the Complainant’s submission seeking to distinguish the within appeal from the Court’s decision in EDA1621, the Court cannot accept the interpretation that the Complainant is seeking to apply to the Court’s reasoning in the earlier case. It is abundantly clear from the text of the determination in EDA1621 that the Complainant’s dispute with his employer related at all time to the question of reasonable accommodation for his disability. The operative part of the Court’s reasoning related to the Complainant’s choice to pursue his dispute exclusively through an internal grievance procedure and allowing the time-limit for bringing a complaint under the Employment Equality Act to expire. In that sense, the relevant facts of the within appeal are on all fours with those of EDA1621. The Court sees no reason, therefore, to depart in this case from the reasoning in EDA1621. This aspect of the Complainant’s application for an extension of time is, therefore, refused.

The Complainant’s second ground for applying for an extension of time relates to an ongoing, episodic medical condition i.e. PTSD which he submits became exacerbated on occasions when he addressed the issue which has given rise to the within proceedings. He has not expressly submitted that this condition prevented him from referring his complaint within time to the Workplace Relations Commission. Notwithstanding this omission, the Complainant’s written submission to the Court recounts numerous exchanges of correspondence between the Complainant and the Respondent in relation to their dispute in the period between the Complainant’s retirement and the date on which he finally referred his complaint to the Workplace Relations Commission. No evidence had been adduced by the Complainant to demonstrate that filing a formal complaint under the Act in a timely fashion to stop the clock ticking would have been any more detrimental to his condition than the copious correspondence he engaged in with the Respondent over a protracted period of some eleven months. It follows that the Court also declines to accept this second ground advanced by the Complainant as constituting reasonable cause for his delay in referring his complaint to the Workplace Relations Commission.

The appeal, therefore, fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
DC	______________________
22 February 2021	Deputy Chairman