ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00028427

Parties:

Complaint(s):

Date of Adjudication Hearing:  14/04/2021

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings

At the commencement of the Hearing all Parties were appraised of the Implications of the recent Supreme Court decision in Zalewski v AO and the WRC [2021] IESC 24.

Both Parties agreed that the Hearing could be in Public and that there was no guarantee that the names of the Parties would not become public knowledge.

It was accepted that full Cross Examination of Witnesses and Representatives would take place.

In relation to the taking of an Oath both Parties advised that this was not necessary as all matters of fact were known to the Parties and there was no direct conflict in relation to evidence.

On foot of these assurances the Adjudication Hearing proceeded.

The Adjudicator requested copy documentation from the Respondent by letter of the 17th May 2021. This was received and copied to all sides for comment. The request arose as the documents supplied in the initial Respondent submission had incomplete pagination.

All evidence was shared between the Parties and full cross questioning and supplementary written comments allowed on documents supplied.

Background:

1:        Opening Legal issue – Time Limits.

 1:1          Background

The date of dismissal was contested.  However, the formal Dismissal letter issued on the 3rd December albeit that the Complainant had not attended work since the 22nd November. In evidence the letter of Dismissal was sent by email on the 3rd of December and notice pay in lieu was paid. The Contract of Employment allows for this.

The Complaint CA -00036511 was received by the WRC at 20:25 hrs on the 3rd June 2020.

 Section 8 (2)(a) of the Unfair Dismissals Act, 1977 provides as follows

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.

In this case six (6) months from the 3rd December 2019 would end on Tuesday 2nd June 2020.

1:2          Respondent Arguments re Time limits

The Respondent argued and cited case Law Adj - 0008142 and Adj-000008142 that effectively the Complaint was out of time albeit by one day. The Respondent pointed out that the Act used the critical phrase “within” the six-month period

1:3          Complainant Arguments re Time Limits

The Complainant argued that the end date was Wednesday the 3rd of June, effectively beginning the six months on the 4th December, the first full day past employment and therefore brings his complaint within the relevant time frame. He maintained that the WRC website would not operate on an I Phone and that he had not been able to secure access to a PC until the 3rd June.

1:4         Adjudicator discussion

The key questions are

1. Is the complaint Statute Barred by being out of time?
2. Does the Complaint merit having his time limit extended for a further six months as per Section 8(2)(b) above?

Question One

Taking Section 18 (h) of the Interpretation Act, 2005 quoted below

(h) Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;

Section 1 of the Unfair Dismissals Act, 1977 gives the definition

“date of dismissal” means—

( a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

( b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

The critical date was the 3rd December 2019 (the date of the dismissal letter) even if the last physical day was the 22nd of November. The Complainant was on holidays until the 3rd December and it had been agreed that the decision would be given to him on his return.

Accordingly, the end date of the 6th Month period was the 2nd June 2020.- counting from the 3rd December 2019.  

Following Section 8(2) (a) of the UD Act and quoted above the Complaint is out of time as it was not lodged with the WRC until 20:53 hrs on the 3rd June 2020.

Regarding the question of an extension to a second six months as per Section 8(2) (b) of the Act the WRC Administration Service wrote to the Complainant on the 7th October 2020 advising that there was a potential out of Time issue with his complaint.

The Complainant replied on the 8th October that as he had not been able to use an I Phone on the WRC website and as the Public library was closed due to Covid he had been forced to borrow a Laptop PC to complete his application.

Question Two – Is an extension of time warranted?

The test to extend the time to permit a claim of unfair dismissal, submitted later than six months but within one year, is that of “reasonable cause”.

The established test for deciding if an extension should be granted for ‘reasonable cause’ shown is that formulated in the Labour Court Determination Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, where the Court considered “reasonable cause” in the following terms:

“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.”

 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 Complainant would have 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.

In the present case the Complainant waited until 20:25 hrs on the 3rd of June 2020 to lodge his claim. The dismissal was on the 3rd December 2019. On questioning he had only vague answers as to why he had delayed so long. The closure of the Public Library, as a source of a PC, was not until Mid-March 2020. This was a full three months post the dismissal. The Complainant acknowledged that he was back in employment on the 11th February 2020. He agreed that he had sought advice from friends on his complaint in January but had not pursued it. He was quite vague as to whether or not the question of time limits had been discussed. The legal costs of a Solicitor were beyond his finances at that time. He was equally vague as to whether he had contacted the Citizen’s Advice Service or read the WRC website.

From the Oral cross examination of the Complainant by the Respondent and clarification questioning by the Adjudicator, on this point, it was very hard to see what Reasonable cause the Complainant had for the delay in submitting his complaint.

In Adj-000027335 the Adjudicator referred to Cementation Skanska in a case quite similar to the case in hand – there had been a one day out of time issue. The Adjudicator ruled against the Complainant, “no plausible reason was submitted” and did not allow an extension of time.

In discussions at the Hearing mention was made of the Date of the of the Appeal Hearing – this being the 20th January 2020. The result was communicated by letter shortly afterwards.  However Legal precedent in this area indicates that the Date of Dismissal is the date of communication and not the date that Post Dismissal Appeal hearing takes place. The major authority here is the House of Lords, West Midlands Co Operative Society v Tipton (1986) IRLR112 where it was ruled that the “effective date is the date of the initial notification”

In the Complainant’s Contract of Employment at Page 1 Payment in Lieu of Notice is provided for which again reinforces the end date of the 3rd December 2019.

In summary the Complainant failed to provide any reasonable or plausible cause for his delay in lodging the complaint. An extension of time could not be supported by any of the Complainants’ evidence.

1:5         Adjudicator Conclusion and Decision

Having reviewed all the evidence and considered the discussion points set out above I find that the Complainant has failed to comply with the relevant time limits and the claim is out of time. I have no jurisdiction to inquire into the Complaint.

2:        Summary of Complainant’s Case:

3:      Summary of Respondent’s Case:

4:        Findings and Conclusions:

5:        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.

The Complaint cannot proceed.

Dated:   26th July 2021

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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