Complainant

Respondent

Parties

Halima  Vickers

Shopify International Limited

Representatives

  Self

Kevin Bell BL, instructed by Colin Gannon, Matheson Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033253-001

18/12/2019

The Complainant was employed by the respondent as a Customer Care ‘Guru’ from 28th of May 2018 up to her resignation on 27th of December 2018.   

The complainant alleges that during this employment she received a statement of her core terms that deliberately contained misleading or false information. 

This claim was submitted on the 18th of December 2019 thus the cognisable period for the claim dates from the 19th of June 2019.

The complainant submits that

She was providing with a misleading contract of employment,

She had secured employment with the respondent while living in Northern Ireland but was later advised that the respondent could only employ ‘gurus’ who were based in the Republic of Ireland.

The complainant relocated to the Republic of Ireland at great inconvenience and financial cost to her and causing great distress to both her and her family.

The respondent submits that

The complainant was employed by them as a Customer Care ‘Guru’ from 28th of May 2018 up to her resignation on 27th of December 2018,

The within complaint was not submitted to the WRC until 18 December 2019, almost 12 months after the last date on which any alleged contravention of the 1994 Act could have occurred,

The Respondent did not, at any stage, knowingly or deliberately provide the Complainant with a false or misleading statement of her core terms of employment,

In addition, this purports to be an action by the Complainant under the Section 6B of the Terms of Employment (Information) Act 1994 – 2014 (hereafter “the 1994 Act”) against the Respondent for providing her with an allegedly misleading statement of terms of employment which deliberately contained false or misleading information,

The Complainant does not have standing to prosecute a complaint under section 6B of the 1994 Act. Such a suit may only be brought by the WRC before the courts of law. There is no statutory provision that entitles a litigant to compensation for any alleged offence under section 6B of the 1994 Act,

In any event, the Respondent denies that it provided with the Complainant with a statement of terms of employment that deliberately contained false or misleading information, or that it breached any provision of the 1994 Act in respect of the Complainant.

The complainant was employed by the respondent as a Customer Care ‘Guru’ from 28th of May 2018 up to her resignation on 27th of December 2018.

The within complaint was not submitted to the WRC until 18 December 2019, almost 12 months after the last date on which any alleged contravention of the 1994 Act could have occurred.

Section 41(6) of the Workplace Relations Act 2015 provides that,

“…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.”

Section 41(8) provides that,

“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 established test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here the test was set out 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.”

The complainant in this case in providing reasons for the delay has submitted that prior to her resignation she had raised issues with the company and was awaiting a call from the companies Head of Support, Mr. S who had indicated that he would get back to her.  The complainant indicated that this happened just before her resignation date, which was in December 2018, she added that Mr. S. did not get back to her in spite of this undertaking. 

A further reason provided by the complainant for the delay in submitting her complaint was that she had previously filed a complaint under different legislation as none of the options seemed to fit her complaint exactly.  The complainant stated that she looked at each Act, but none fitted perfectly.  She added that she had selected the act as advised by the lawyer at the free legal aid.   

In this regard I note that the complainant submitted an earlier complaint under the Employment Equality Act, this was a claim of discrimination on grounds of civil status and was submitted to the WRC on 11th of June 2019.  A hearing on this matter took place on 17th of December 2019.

Having considered this matter, taking account of the reasons advanced and the evidence adduced and given that the complainant had instigated an earlier complaint on 11th of June 2019, I am not satisfied that the reasoning that she was awaiting a call back from Mr. S would have prevented her from lodging a claim within the six-month period, should she have been minded to do so.

 I further note that the Complainant had previously filed a complaint under different legislation (the Employment Equality Acts) as she claimed none seemed to fit her complaint exactly and she has also advanced this as a reason for the delayed lodging of the current proceedings.

Having considered this matter I am satisfied that the complainant in this case has not demonstrated “reasonable cause” to extend the consignable period for the purposes of this claim.

I find that the Complainant has failed to comply with the relevant time limits for submission of this complaint. Accordingly, I do not have jurisdiction to inquire into this complaint.

I find that the Complainant has failed to comply with the relevant time limits for submission of his complaint. Accordingly, I do not have jurisdiction to inquire into this complaint.