CORRECTION ORDER
ISSUED PURSUANT TO SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision issued on July 9th 2021
Adjudication Reference: ADJ-00029429
Parties:
| Complainant | Respondent |
Parties | Pascal Hosford | The Minister for Employment Affairs & Social Protection |
Representatives |
| Cathy Smith B.L. instructed by the Chief State Solicitor's Office |
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-00039358-001 | 21/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039358-002 | 21/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039358-003 | 21/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00039358-004 | 21/08/2020 |
Date of Adjudication Hearing: 11/05/2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Preliminary Issue:
A preliminary issue arose in the case in relation to time limits and the jurisdiction to hear the complaints.
The termination of employment to which the Unfair Dismissals complaints related took place on November 1st, 2019.
The complaint under the Protection of Disclosures Act related to emails sent in July and August 2019.
All of the complaints were made to the Workplace Relations Commission on August 21, 2020, outside the statutory time limits, and although there is provision to extend this period this is discussed below. |
Summary of Complainant’s Case on Preliminary Issue:
The complainant explained that for a combination of reasons he could not make the submission on the unfair dismissal within the time period.
His reasons were that he was engaged in High Court litigation and the outcome of that litigation had a bearing on his decision whether or not to pursue a complaint at the WRC.
He says that he could not submit the complaint to the WRC as no complaint had crystallised until the High Court issued its decision on February 25th, 2020.
Also, as a lay litigant he was in the process of familiarising self with the law and preparing for the case which took a lot of his time.
In relation to the complaint under the Protected Disclosures Act, the emails which form the basis of the complaint had a ‘rolling effect’ which brought it within the time limits of the Act.
The complainant says that the established jurisprudence tests impose a relatively low threshold of reasonableness and that his application for an extension of time is well met. |
Summary of Respondent’s Case on Preliminary Issue:
The Unfair Dismissal complaints all fall outside the six-month time period within which such complaints are required to be made.
On the basis of the written submission of the complainant, no good case has been made out to show why they have not been submitted within the six-month period and that therefore the reasonable cause requirement has not been met there for the complaints which are not therefore within jurisdiction.
In respect of the Protective Disclosure complaints these fall outside the twelve-month period and may not be considered at all. |
Findings and Conclusions:
The preliminary point relates to jurisdiction and whether the complaints have been made within the prescribed time limits, the parties are heard first on that preliminary matter. The legal position in relation to time limits is well set out in a number of Labour Court decisions.
The criteria set out by the court can be summarised as the ‘Explain and Excuse’ test.
The Labour Court has explained this as follows.
“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.”
Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338
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 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.”
In Department of Finance v IMPACT. [2005] E.L.R. 6. the Court re-stated the ‘Explain and Excuse’ test saying that it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test.
It is important to state that the requirement falling on a potential complainant is simply to lodge a complaint within the time limit of six months (in this case).
It does not require legal submissions or supporting documentation at the point of lodging it, beyond the basic information required for the Complaint form. The complainant accepted in the course of the hearing that he could have made filled out that form in approximately half an hour.
He said that no complaint had, as he put it, crystallised until the High Court issued it decision on February 25th, 2020.
This is not correct.
The action which ‘crystallises’ a complaint under the Unfair Dismissals’ Act is the termination of the employment, whether by the employer, or in the case of constructive dismissal, by the employee.
Even taking his own argument about the High Court proceedings, he still had some two months or so to find the half hour in which to make a complaint to the WRC.
But he did not do so.
It is possible that there may be circumstances in which the cause of action only becomes clear following proceedings elsewhere but on these facts that is not the case in relation to this complaint. In any event, it is not accepted that proceedings elsewhere will, as a matter of law, meet the ‘Excuse and Explain’ test.
At any time, he wished, the complainant could have submitted his complaint to the WRC following termination of his employment.
He also relied on the impact of the Covid-19 pandemic.
The pandemic had only reached its early stages in mid-March 2020 by which time four and a half months of the period since his termination had already passed. Even then, the complaint procedures of the WRC remained accessible online or by post.
Therefore, the pandemic neither explains nor excuses his failure to make a complaint.
And in relation to the complaint on the Protected Disclosures Act the complainant has said that the acts on which he based his complaint had, as he put it, a rolling affect.
There is no such concept known to the law in relation to time limits (except in respect to certain circumstances related to equality complaints) which does not apply here.
However, even if this argument were to bring the complaints within 12 months the complainant would still have to meet the tests set out above in respect of extending it beyond six months.
It does not and they fall outside the twelve-month period for making a complaint and are not within jurisdiction.
The complainant has failed to make out a case that meets the requirements of reasonable cause and the tests set out above. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
For the reasons set out above complaints CA-00039358-001, 002, 003 and 004 are not well-founded. |
Dated July 9th 2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Time limits. |
In the original decision the following appears in the Findings and Conclusions. This Correction Order relates to the two paragraphs below italicised and underlined for ease of reference, which are hereby corrected and deleted in respect of those two paragraphs only. The Decision is not affected by this correction.
‘Findings and Conclusions
‘As is the practise of the WRC, when a preliminary point arises as to jurisdiction, the parties are heard first on that preliminary matter.
Then, having heard those arguments, the Adjudicator will normally proceed to hear the substantive case, on the basis that should a finding be made to the advantage of the party seeking (in this case) an extension of time, there will be no need to re-convene the hearing on the substantive issues.
That is what happened in this case and following submissions on the extension of time limits a full hearing of the both parties’ cases on the substantive matters followed.
It was explained to, and accepted by the parties that should the application for extension not be upheld that would dispose of the complaints without the need for a further hearing.’
(Emphasis added for the purpose of this Correction Order)
In fact, the matter was decided on the preliminary point related to time limits and there was no full hearing of both parties’ cases on the substantive matters. The Decision in respect of the complaints in the matter is unaffected by this correction which was a drafting error.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029429
Parties:
| Complainant | Respondent |
Parties | Pascal Hosford | The Minister for Employment Affairs & Social Protection |
Representatives | none | Cathy Smith B.L. instructed by the Chief State Solicitor's Office |
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-00039358-001 | 21/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039358-002 | 21/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039358-003 | 21/08/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00039358-004 | 21/08/2020 |
Date of Adjudication Hearing: 11/05/2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Preliminary Issue:
A preliminary issue arose in the case in relation to time limits and the jurisdiction to hear the complaints.
The termination of employment to which the Unfair Dismissals complaints related took place on November 1st, 2019.
The complaint under the Protection of Disclosures Act related to emails sent in July and August 2019.
All of the complaints were made to the Workplace Relations Commission on August 21, 2020, outside the statutory time limits, and although there is provision to extend this period this is discussed below. |
Summary of Complainant’s Case on Preliminary Issue:
The complainant explained that for a combination of reasons he could not make the submission on the unfair dismissal within the time period.
His reasons were that he was engaged in High Court litigation and the outcome of that litigation had a bearing on his decision whether or not to pursue a complaint at the WRC.
He says that he could not submit the complaint to the WRC as no complaint had crystallised until the High Court issued its decision on February 25th, 2020.
Also, as a lay litigant he was in the process of familiarising self with the law and preparing for the case which took a lot of his time.
In relation to the complaint under the Protected Disclosures Act, the emails which form the basis of the complaint had a ‘rolling effect’ which brought it within the time limits of the Act.
The complainant says that the established jurisprudence tests impose a relatively low threshold of reasonableness and that his application for an extension of time is well met. |
Summary of Respondent’s Case on preliminary Issue:
The Unfair Dismissal complaints all fall outside the six-month time period within which such complaints are required to be made.
On the basis of the written submission of the complainant, no good case has been made out to show why they have not been submitted within the six-month period and that therefore the reasonable cause requirement has not been met there for the complaints which are not therefore within jurisdiction.
In respect of the Protective Disclosure complaints these fall outside the twelve-month period and may not be considered at all. |
Findings and Conclusions:
As is the practise of the WRC, when a preliminary point arises as to jurisdiction, the parties are heard first on that preliminary matter.
Then, having heard those arguments, the Adjudicator will normally proceed to hear the substantive case, on the basis that should a finding be made to the advantage of the party seeking (in this case) an extension of time, there will be no need to re-convene the hearing on the substantive issues.
That is what happened in this case and following submissions on the extension of time limits a full hearing of the both parties’ cases on the substantive matters followed.
It was explained to, and accepted by the parties that should the application for extension not be upheld that would dispose of the complaints without the need for a further hearing.
The legal position in relation to time limits is well set out in a number of Labour Court decisions.
The criteria set out by the court can be summarised as the ‘Explain and Excuse’ test.
The Labour Court has explained this as follows.
“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.”
Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338
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 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.”
In Department of Finance v IMPACT. [2005] E.L.R. 6. the Court re-stated the ‘Explain and Excuse’ test saying that it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test.
It is important to state that the requirement falling on a potential complainant is simply to lodge a complaint within the time limit of six months (in this case).
It does not require legal submissions or supporting documentation at the point of lodging it, beyond the basic information required for the Complaint form. The complainant accepted in the course of the hearing that he could have made filled out that form in approximately half an hour.
He said that no complaint had, as he put it, crystallised until the High Court issued it decision on February 25th, 2020.
This is not correct.
The action which ‘crystallises’ a complaint under the Unfair Dismissals’ Act is the termination of the employment, whether by the employer, or in the case of constructive dismissal, by the employee.
Even taking his own argument about the High Court proceedings, he still had some two months or so to find the half hour in which to make a complaint to the WRC.
But he did not do so.
It is possible that there may be circumstances in which the cause of action only becomes clear following proceedings elsewhere but on these facts that is not the case in relation to this complaint. In any event, it is not accepted that proceedings elsewhere will, as a matter of law, meet the ‘Excuse and Explain’ test.
At any time he wished, the complainant could have submitted his complaint to the WRC following termination of his employment.
He also relied on the impact of the Covid-19 pandemic.
The pandemic had only reached its early stages in mid-March 2020 by which time four and a half months of the period since his termination had already passed. Even then, the complaint procedures of the WRC remained accessible on line or by post.
Therefore, the pandemic neither explains nor excuses his failure to make a complaint.
And in relation to the complaint on the Protected Disclosures Act the complainant has said that the acts on which he based his complaint had, as he put it, a rolling affect.
There is no such concept known to the law in relation to time limits (except in respect to certain circumstances related to equality complaints) which does not apply here.
However, even if this argument were to bring the complaints within 12 months the complainant would still have to meet the tests set out above in respect of extending it beyond six months.
It does not and they fall outside the twelve-month period for making a complaint and are not within jurisdiction.
The complainant has failed to make out a case that meets the requirements of reasonable cause and the tests set out above. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
For the reasons set out above complaints CA-00039358-001, 002, 003 and 004 are not well-founded. |
Dated: July 9th 2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Time limits. |