Complainant

Respondent

Anonymised Parties

A Driving Instructor

An Employer

Representatives

  Self

Ronnie Lawless of IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00033489-001

04/01/2020

This hearing was held remotely.

The Complainant submitted her claim on 4 January 2020.

The Respondent filed submissions in advance of the hearing.

The Complainant did not file submissions in advance of the hearing.

Both parties were given an opportunity to raise questions and cross examine each other.

It is the Complainant’s case that she was unfairly dismissed from her role as a driving instructor following her return to work after an accident.

The Respondent raised a preliminary objection on the basis the claim was filed after the 6-month time limit.

The Complainant stated she commenced work with the Respondent on 27 March 2017 and received her notice on 15 March 2019 with the termination date of 23 March 2019.

The Complainant stated she was one of seven driving instructors employed by the Respondent in 2017. She underwent training and passed her probation without issue.

The Complainant outlined the events leading up to her dismissal including a car accident at work which she believed changed everything. Following her return from sick leave she was told her employment would cease. The Complainant stated she was the only one of the seven driving instructors not to have her contract reviewed.

Response to Preliminary Objection

The Complainant gave evidence that she was in touch with her Union, but it was not until August or September 2019 that they advised her they were not in a position to assist her with the case. She stated that she “gave up on the case for a while” before contacting the Workplace Relations Commission helpline. The Complainant gave evidence that she spoke to the WRC on approximately three occasions from January 2020 and was advised to complete the Complaint Form. This took her some time as it was a “big long form”. In or around August or September 2019 and again in January 2021 she stated she spoke to a solicitor informally who advised her of the termination clause.

The Complainant stated that she was under pressure and stress as a result of losing her job and this contributed to the delay in filing her complaint to the WRC.

Upon cross examination by Mr Lawless for the Respondent she accepted that she wrote to the CEO of the Respondent seeking to appeal the decision in March 2019. She continued to email the Respondent in March through April 2019. Reference was also made and accepted by the Complainant to a letter received in June 2019 from a TD in relation to the Complainant’s case.  The Complainant stated that she was fighting for her job.

The Respondent raised two points at the outset of the hearing, the first in relation to the filing of the complainant outside the 6-month time limit and the second, that the Complainant was on a fixed term contract which expired on 26 March 2019.  The contract contained a clause which stated that the Unfair Dismissals Act 1977 does not apply to the contract by reason only of the expiry of the contract.

Preliminary Objection

The Respondent set out that the claim was filed over 9 months from the date of dismissal. Section 8 (2) of the Unfair Dismissals Act 1977 was opened by the Respondent together with the test of extending the time limit, i.e. whether reasonable cause can be established. The Respondent relied upon the decision of Employment Appeals Tribunal in the case of Cementation Skanska v Carroll, DWT0338 together with the High Court decision in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301.

The Respondent questioned the Complainant as to the correspondence she wrote to its CEO in March 2019 and to HR through April 2019 together with the letter to her local TD. It was also pointed out that the Complainant had the benefit of Union advice and submitted that the reason the Union did not continue with the case was because she had no case. The Respondent’s HR Manager confirmed that she received correspondence from the Union in July 2020.

Section 8(2) of the Unfair Dismissals Act 1993 which states the following in respect of time limits:

(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 section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) if the rights commissioner or the Tribunal, as the case may be, is satisfied that exceptional circumstances prevented the giving of the notice within the period aforesaid, then, within such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable,”

S. 41 of the Workplace Relations Act 2014 states: -

“(6) Subject to subsection (8), 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.”

and

“(8) 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.”

Considering the issue of the time limit and the application by the Respondent that the case cannot be decided upon as it was submitted outside of the 6-month time limit provided for in the legislation, it is necessary to consider the well-established test in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, DWT0338. The Labour Court clearly set out the test when considering whether reasonable cause exits to extend time beyond the period of 6 months: -

“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 date of dismissal was 26 March 2019 as stated in the Complainant’s contract of employment. The Complainant engaged with the Respondent in March and April 2019 seeking to appeal her termination together with a request for her personal data. Further efforts were made by the Complainant’s local TD who wrote on her behalf in June 2019.

While it is unfortunate that the Complainant was not advised by her Union until August or September 2019 that they would not be in a position to represent her, I find the Complainant’s evidence as to the basis for this decision vague at best nor was she entirely sure of the dates. No supporting documentation was presented by the Complainant whatsoever either before or during the hearing.   She also stated that she spoke to a solicitor she was acquainted with around that time and again in January 2020 before she submitted her claim and acknowledged that she was advised about the nature of a fixed term contract.

By the Complainant’s own admission, she did not pursue the claim again until January 2020, deciding to leave it lie until the date of submission to the WRC on 4 January 2020.

I also carefully considered the Complainant submission that she was under stress which affected her daily life. No medical evidence of same was presented at the hearing. Furthermore, there is a series of emails and letters from the Complainant to the Respondent around this time which by her own admission she was “fighting her corner”.

In summary, the evidence demonstrates that the Complainant was proactively engaged in seeking reinstatement of her contract for the early part of 2019. The Complainant herself accepted that she chose to not to proceed with the case from September 2019 to January 2020. Applying the objective test set laid out by the Labour Court to the facts before me, it can only be concluded that the case does not meet the test of reasonable cause to allow for an extension of time.

The Complainant’s claim is out of time and therefore, I have no jurisdiction to decide on the complaint.  

Unfair Dismissal – Jurisdiction – Time Limits