ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027479
Parties:
| Complainant | Respondent |
Anonymised Parties | A Technical Coordinator | A Financial Management Company |
Representatives |
| Rosemary Mallon BL instructed by Mason Hayes & Curran |
Complaint:
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-00035148-001 | 10/03/2020 |
Date of Adjudication Hearing: 13/11/2020
Workplace Relations Commission Adjudication Officer: James Kelly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant claims that she took a case under the Respondent’s Dignity at Work Policy in January 2019, which was delayed and not completed until January 2020. She said that she was unfairly dismissed by way of constructive dismissal on 7 May 2019. The Respondent claims that the Complainant left of her own accord, while an internal grievance matter was being investigated. The Respondent also claims that the Complainant failed to lodge her complaint with the WRC within the Statutory time limits. |
Summary of Complainant’s Case:
The following is a short summary of the Complainant’s case.
The Complainant said that she was a Technical Coordinator with the Respondent. She said that while she was out on certified sick leave, a team member was promoted to team leader, and on her return to work in April 2018, the team leader started to bully the Complainant about her performance and attempted to place her on a performance improvement plan. She claims that there never was an issue with her performance previously.
She claims that she complained to the department’s manager and HR. She said she decided not to take a complaint under the Dignity at Work Policy until January 2019, at which point her mental health was badly affected, and she went out on sick leave. She said that there was a substantial delay in HR starting the investigation. She said that the Respondent wanted her to return to work in April 2019 but could not assure her that she would be protected from the team leader and as the investigation was not completed, she felt she had no option but to consider herself constructively dismissed as of 7 May 2019.
The investigation under the Respondent’s Dignity at Work Policy continued and was not concluded until January 2020.
Preliminary matter In response to the preliminary matter raised by the Respondent as to her failing to bring her unfair dismissal complaint to the Workplace Relations Commission until 10 March 2020, she said that she could not bring the complaint any earlier than January 2020, as the internal investigation under the Respondent’s Dignity at Work Policy was still on going.
The Complainant said that she was shocked at the outcome of the investigation and was unhappy with the Respondent’s position. She became very upset and her mental health suffered as a result. She took her case to the Workplace Relations Commission within two months of the Respondent’s completion of the investigation under the Respondent’s Dignity at Work Policy. |
Summary of Respondent’s Case:
The following is a short summary of the Respondent’s case.
The Respondent said that the Complainant commenced work as an employee on 8 August 2017 in the role of Technical Coordinator. She raised a grievance under the Dignity at Work Policy on 20 January 2019 against a team leader and a manager for not dealing with the team leader. The Complainant went out on sick leave.
The investigation of the grievance started in February 2019. The team leader was out of work from 19 November 2018 on sick leave. She did not return to the office before commencing her maternity leave on 17 December 2018 and did not return to work and was not interviewed as part of the investigation accordingly until January 2020. The Complainant had resigned her position on 7 May 2019, some 7 months previously.
The Respondent said that the Complainant was required to allow the investigation to run its course. It was not unreasonable behaviour on the part of the employer to delay an ongoing investigation in circumstances where the main respondent to the complaint was absent on maternity leave. The Respondent said that the Complainant does not satisfy the test for constructive dismissal as it was unreasonable for her to resign in the middle of an investigation into her complaints.
Preliminary matter The Respondent at the outset of the hearing raised a preliminary matter as to the time limits in the Complainant bringing her claim to the Workplace Relations Commission.
It said that the Complainant resigned from her employment on 7 May 2019 but waited to bring her claim until 10 March 2020, which is outside the 6-month statutory time frame and therefore she is statute barred and out of time.
It said that her request to have her case considered as a case of “reasonable cause” does not satisfy the test for an extension of time as required by statute. She resigned approximately 7 months before the investigation was completed and therefore the outcome of the investigation had no bearing on her decision to resign, which is the subject matter of the case.
The Respondent said that she failed to give any explanation for the further delay between being notified of the ending of the investigation of her internal complaint in January 2020 and the date she finally decided to bring her complaint to the WRC on 25 March 2020. The Respondent said that the Complainant has failed to establish any reasonable cause for an extension of time. It said that the case law is clear that any delay due to an internal process such as a grievance procedure or an investigation is not grounds for an extension of time.
In support of that position the Respondent relies on the case of Brothers of Charity Services Galway v Kieran O’Toole EDA 177, where the Court held: “The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”
The Respondent also relies upon the Labour Court determination of Business Mobile Security Ltd T/A Senaca Ltd v John McEvoy EDA 1621. The Respondent said in that case the Court had to determine when the last act of discrimination occurred against the Complainant. It said that the Complainant alleged that it occurred in August 2012 and was repeated in May 2013 through the refusal of the Respondent to rectify it through the grievance procedure. The Respondent argued that the claimant should not be permitted to circumvent the time limits set out in the Act by seeking to rely on an internal procedure that did not prevent him bringing his complaint. The Court held that the claim was statute barred. It held: “The Court has examined the facts of the case as outlined in the submissions of both parties. The Court finds that the last act of discrimination occurred no later than August 2013. Thereafter the Complainant had a choice to make as to whether he would pursue the matter through the statutory remedies available to him or would avail of an internal grievance procedure in an effort to secure a resolution. He chose the latter.”
The Respondent said in the within case the Complainant chose the internal procedure, resigned before that was completed and when it was completed then decided to try to have the case considered through the statutory remedies but that was done outside the statutory time limits and no reasonable cause for an extension of time has been presented. Therefore, the Complainant’s claim should fail.
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Findings and Conclusions:
Preliminary Matters
The Law The Workplace Relations Act 2015 at section 41(6) states: “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.
(7) …
(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 parties are in agreement that the Complainant ended her employment relationship with the Respondent on 7 May 2019 and the complaint was brought to the Workplace Relations Commission on 10 March 2020. It was accepted that that period is beyond the 6-month period set out under section 6 of the Workplace Relations Act 2015. It equates to over 10 months after she had left her employment.
The Respondent relies on the Labour Court determinations in Brothers of Charity Services v Kieran O’Toole EDS177 and Business Mobile Security Ltd t/a Senaca Ltd v John McEvoy EDA1621 both cases support the contention that statutory time limits under the Acts are not anyway stayed due to the investigation of an internal grievance. The decision of the Labour Court would appear to support that in the respective determinations.
Notwithstanding the abovementioned, the Complainant’s complaint is that she was constructively dismissed as of 7 May 2019. She at that juncture did not know the possible outcome of the internal grievance or likely consequences that would prevail. The Complainant said that she had not received the final report from the Respondent as to the outcome of the investigation of the grievance she had taken under the Respondent’s Dignity at Work Policy. The internal investigation had not completed until 20 January 2020 and when she found out at that point that the Respondent would not be sharing with her the findings of the internal investigation, she was quite shocked. She claims that she “couldn’t submit [her Workplace Relations Commission’s] complaint any earlier.”
She also said at this point she became very upset and felt ignored by the Respondent and her mental health suffered as a consequence, resulting in her not being in a position to work until November 2019. The Complainant has outlined that these reasons should be taken into account in determining whether there was “reasonable cause” to extend time as provided for in section 41(8) of the Workplace Relations Act 2015.
I note that on 20 January 2020, the Complainant had already left her employment over 8 months. The issue arising in this preliminary matter is whether reasonable cause has been shown for an extension of time under section 41(8) of the Workplace Relations Act 2015.
The well-established test for deciding if an extension should be granted for reasonable cause was formulated by the Labour Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.
The test was set out in the following terms: “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.”
It has now become well settled as the bench mark test for subsequent cases and the approach is considered analogous to that taken by the Superior Courts in considering whether time should enlarge for ‘good reason’ in judicial review proceedings, pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986.
The test formulated in Cementation draws on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Where the presiding Judge said;
“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”
Accordingly, it is clear from the legal authorities cited above that the test formulated in Cementation places a substantial onus on the applicant for an extension of time to identify the reason(s) for the delay and to establish that the reason(s) relied upon provides a justifiable excuse for the actual delay. There is also an onus on the applicant to establish a causal connection between the reason proffered for the delay and her failure to present the complaint within time. The Adjudicator must be satisfied that the Complainant would have presented the complaint within time were it not for reasons relied upon as constituting reasonable cause. The decision in Cementation deems that the actual delay must be explained and justified. As mentioned in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation, asquoted above, the Adjudicator should not simply extend a statutory time limit merely because the applicant believed they were justified in the delay.
I am satisfied that the Complainant’s decision to deem herself constructively dismissed crystallised on her leaving her employment on 7 May 2019. I am satisfied that the statutory time limits under the Acts started from this point.
I am satisfied that the trigger for lodging her complaint with the WRC was in and around 20 January 2020, already 8 months after she left her employment, when she learned that she would not be party to the final outcome of the internal investigation, by which time the 6-month statutory time limits to lodge her complaint under the Acts had already lapsed.
I am satisfied that the Complainant has failed to satisfy the test established in Cementation. I find that the reason proffered by the Complainant does not afford her an excuse for the delay. |
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.
I find that the complaint under the Act is outside the statutory time limits and therefore must fail. Accordingly, in these circumstances, I cannot proceed to hear the substantive matter. The complaint is not well founded. |
Dated: 20/01/2021
Workplace Relations Commission Adjudication Officer: James Kelly
Key Words:
Unfair Dismissals Acts – constructive dismissal – time limits – out of time. |