FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : DYSON IRELAND (REPRESENTED BY ARTHUR COX) - AND - MS SANDRA MORRIS DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00023011 CA-00029504-001 Background The Appellant was engaged by the Respondent as a product demonstrator from 2004 to 2014. It is common case that the Appellant has not provided any services to the Respondent since December 2014. The Appellant raised a matter before the SCOPE section of the Department of Employment Affairs and Social Protection (DEASP) in 2016 and a final decision was made by that Department in February 2019 that the Appellant, for the purposes of relevant Social Welfare legislation, had been an employee working under a contract of service for the Respondent from 18thFebruary 2004 to 21stDecember 2014. Separately, the Respondent wrote to the Appellant on 30thAugust 2018 advising her that certain data relating to her was held by the Respondent. The Respondent advised her that the data related to her period of engagement as a contractor up to December 2014 and that, because her engagement had come to an end, the data had, in accordance with the Respondent’s Data Retention Policy, been deleted. The Appellant contended that she was dismissed within the meaning of the Act by letter dated 30thAugust 2018. The Respondent submitted that the Appellant had not been engaged by the Respondent in any capacity since December 2014 and consequently the date of dismissal, if a dismissal within the meaning of the Act was considered to have taken place, which was denied by the Respondent, could not have occurred any later than December 2014. The within complaint was made to the Workplace Relations Commission on 8thJuly 2019. Preliminary Matter At its hearing, the Court set out that a matter had been raised by the Respondent related to the time limits applicable under the Act for the making of a complaint. That matter had also been addressed by the Adjudication Officer in her decision. The Court proposed to the parties that, because this matter had the potential to dispose of the appeal in its entirety, in the interest of efficiency of process it would deal with this matter as a preliminary matter prior to dealing with the substantive matters in dispute under the Act. Both parties confirmed their agreement to this approach. Summary position of the Respondent on the preliminary matter The Respondent set out its submission on the preliminary matter without prejudice to its position that the Appellant was engaged as a contractor and not as a worker within the meaning of the Act. No decision of the DEASP is determinative of the employment status of the Appellant for the purposes of the within complaint. The Appellant has not provided any form of service for the Respondent since December 2014. She has not provided medical certificates during the period since 2014 and neither did she provide the Respondent with any reason for her absence or the likely date of her return. The original complaint is out of time. No excuse can be considered in a situation where the complaint is presented outside of the 12-month maximum allowable period. Summary position of the Appellant on the preliminary matter The Appellant submitted that she had been dismissed on 30thAugust 2018. She received a final decision from the DEASP as regards her employment status on 18thFebruary 2019, which was the first time that she could submit a compliant under the Act. The Appellant submitted that after her receipt of a decision from the DEASP she spent time ‘tying up loose ends’ and deciding whether to make a complaint under the Act against the Respondent. Ultimately, she made such a complaint on 8thJuly 2019. Relevant Law The Act at Section 8(2) makes provision as follows 8(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, Discussion and ConclusionsThis Court, commencing with its determination in Cementation Skanska v Carroll DWT 38/2003, has given detailed consideration to the meaning of the expression ‘reasonable cause’ as used in statutory provisions analogous to section 8(2) of the Act. It was the Court's view in that case 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 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 Court went on to say that the length of the delay should also be taken into account. A short delay might only require a “slight explanation” whereas a long delay might require “more cogent reasons”. Even where reasonable cause was shown, the Court determined that it should still consider if it was appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.The Court has given very careful consideration to the Appellant’s submission in relation to the reason she delayed making her appeal. She has alleged that she was dismissed on 30thAugust 2018 and that she delayed making the within complaint until after the issue of a decision by SCOPE Section of the DEASP as regards the insurability of her employment for social welfare purposes up to 21stDecember 2014. That decision issued on 18thFebruary 2019 and the within complaint was made to the Workplace Relations Commission on the 8thJuly 2019. The Complainant submitted that the delay in making her complaint after 18thFebruary 2019 arose from her need to “tie up loose ends” as regards her entitlements under Social Welfare legislation and her need to evaluate whether she would make a complaint under the Act. The Complainant has confirmed that, not having worked since 2014, she had, in 2016, considered with her then legal adviser making a complaint under the Act. She has submitted that her then legal adviser counselled her to establish the insurability of her employment through SCOPE Section of DEASP prior to making a complaint under the Act. A complaint as regards a dismissal which occurred on 30thAugust 2018 would, were it to be made on time, have to be made to the Workplace Relations Commission by 1stMarch 2019. The Complainant was, by her account, dismissed no later than 30thAugust 2018 and she made a complaint to the Workplace Relations Commission on 8thJuly 2019; some ten months later. Having regard to the Court’s jurisprudence as outlined above, such a delay requires ‘cogent reasons’ explaining the circumstances which represent reasonable cause for the delay. The Appellant has submitted that the delay to 18thFebruary 2019 arose because she awaited a decision from the DEASP and that the further delay of approximately four and a half months arose from her need to deal with her entitlements under Social Welfare legislation and her need to evaluate whether she would make a claim under the Act. It is the Court’s view that the reasons proffered by the Complainant for a delay of over four months after the expiry of a six-month period following the date of her alleged dismissal do not constitute reasonable cause which explains and justifies that lengthy delay. The within complaint is therefore out of time. The date of 30thAugust 2018 is the only date upon which the Complainant alleges a dismissal within the meaning of the Act took place. The Court, having concluded that a complaint made on 8thJuly 2019 in relation to a dismissal on 30thAugust 2018 is out of time, could not possibly conclude that a complaint as regards a dismissal on any earlier date could be in time. Having reached this conclusion, it is not necessary for the Court to resolve the dispute between the parties as to whether a dismissal took place on 30thAugust 2018 at all or whether the Appellant’s engagement by the Respondent in fact concluded in December 2014. Similarly, because the Court has concluded that the complaint made on 8thJuly 2019 is out of time, it is not necessary to resolve a dispute between the parties as regards the employment status of the Complainant or whether a dismissal within the meaning of the Act occurred at all. Decision The complaint under the Act is out of time and the Appellant has failed to demonstrate that she was, for reasonable cause, prevented from making the complaint in time. The appeal fails and the decision of the Adjudication Officer is affirmed. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
