ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00030719

Parties:

Complaint:

Date of Adjudication Hearing:  17/06/2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 as amended 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:

Preliminary Matter:

The complaint was lodged with the Workplace Relations Commission on the 11th of October 2020.

The complainant states that the alleged contravention occurred on the 4th of February 2020; the employer disputes this and states the complainant resigned from the company on the 8th of February 2019. The company stated that they will always see if they can re-employ a previous employee after leaving the company; however, no career break was given to the complainant or to other employees.

 The employer stated that the complainant’s request to be re-employed was considered; however, there was no suitable   opportunity or vacancy in order to accede to the request to re-employ, which is always at the company’s discretion. The respondent employer stated that the complainant resigned in February 2019 and the claim for Unfair Dismissal is out of time to bring a complaint under the Unfair Dismissals Act. Even by the complainant’s account of dates and representations the claim is out of time by a couple of months. The employer relies on what it says is well settled law that in this situation; the complainant must provide a reason to explain why the complaint was not lodged within 6 months. This reason must be a primary cause for the delay or significantly contributed to the delay. The test is an objective one. The complainant has not provided an explanation that meets the legal basis to extend time past the 6-month period and the employer respectfully submits that the reason given by the complaint is wholly subjective. The complainant may have made representations for improvement in conditions and terms; however, to state that the delay arose from a fear of not receiving a good reference if she took the case, is a subjective reason. She also stated that COVID contributed as it was more difficult to get a job; again being out of employment and deciding not to lodge the complaint until re-employed is a personal choice and does not meet the objective test.

Based on the alleged contravention occurring on the 4th of February 2020, the employer states that the complaint is still out of time by several months.

The Unfair Dismissal Act provides for an extension at section 8(2):

(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 2015to 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,

In an email to the Commission on the 21st of November 2020, the complainant states that the delay arose due to being allegedly badly treated by her former employer and a fear that if she was to make a complaint it would harm her chance of gaining a new job. She depended on her previous employer for a good reference. Also the Pandemic created a delay.

On being questioned at the hearing by the Adjudication Officer, the complainant also stated that the delay arose due to her belatedly finding out that another employee had in fact been re-engaged and she only became aware of that fact during the summer of 2020.

The Adjudication Officer referenced the leading case of Cementation Skankska v Carroll DWT 38/2003 at the hearingas the test to be applied when considering if a reasonable cause exists to extend time.The complainant stated that she was aware of the test which requires the complainant to explain why the delay occurred and that the exceptional circumstances that explain why a delay occurred, also caused the delay or significantly contributed to her making a late referral.

 In Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:

In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" as follows:

"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 that 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 Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."

The test is an objective one and importantly the case law requires that 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.

On the facts before me, the complainant believes that she was justified in delaying the initiation of proceedings within the 6-month statutory time limit to do so; based on her fear of not receiving a good reference. When she gained employment she then referred the complaint within a couple of weeks. The complainant carries the burden of proof when making an application for an extension of time. A belief may give rise to caution in lodging a complaint. To allow the complainant to rely on her belief that lodging her complaint would lead to a bad reference as a reasonable cause, would as a corollary give rise to a diminution in the respondent’s right to rely on the  6 month statutory time period, as the belief if accepted would extend time by months. The complainant also stated that she was influenced in making her complaint when she heard that another colleague who had left the company had been rehired during the summer of 2020. On the facts no objective reasons have been presented to explain the delay and show that factors relied upon to explain the circumstances for the delay also caused or contributed to the delay.   The test is an objective one and based on what the complainant cites for reasons to explain the delay, I determine they don’t meet the legal test, as they are primarily subjective explanations. On that basis I determine that the complaint is out of time as the complainant has not given an explanation that meets the test of a reasonable cause that would in turn extend time. As no reasonable cause has been provided, I determine that the complaint is statute barred and I have no jurisdiction to hear the complaint and dismiss the claim.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

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.

Dated:   19th July 2021

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: