Complainant

Respondent

Anonymised Parties

General Manager

Accommodation Provider

Representatives

Self-Represented

Mr. David Pearson, J W O'Donovan Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00040168-001

30/09/2020

The Complainant commenced employment with the Respondent on 19th December 2009. During the relevant time for the purposes of the complaint, the Complaint’s job title was that of “General Manager”. On 31st January 2020, the Complainant’s employment terminated as the centre ceased operations.

On 30th September 2020, the Complainant lodged the present complaint with the Commission. Having regard to he Complainant’s final date of employment, the complaint was lodged seven months and thirty days after the last day of work. Herein, the Complainant alleged that he had not received payment for his outstanding public holiday entitlement on the termination of his employment. By response, the Respondent denied this allegation and submitted that the Complainant had received all outstanding payments   

A hearing in relation to this matter was convened for 26th March 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. In advance of the hearing both parties issued written submissions. The Complainant gave direct evidence in support of his complaint. This evidence was challenged by the representative for the Respondent where appropriate.

At the outset of the hearing the Respondent raised a preliminary application as to my jurisdiction to hear the complaint as presented. In particular, he stated that as the last breach of the Act occurred over six months from the date of the lodgement of the complaint, the matter is statute barred. By response the Complaint submitted that he could demonstrate “reasonable cause” so as to increase the consignable period for the claim to 12 months.

The Complainant stated that he attempted to resolve the matter locally with the Respondent following the termination of his employment. When these discussions did not yield a satisfactory response, the Complainant lodged the present complaint. By submission, the Complainant also stated that was unaware of the existence of a third-party body that would adjudicate the dispute that had arisen. Shortly after speaking to a third-party advisory service he lodged the present complaint.

By response, the Respondent stated that the Complainant had not demonstrated any grounds to establish “reasonable cause” to extend the consignable period of the complaint.  In particular, the Respondent submitted that the Complainant’s ignorance as to his rights in instigating the complaint was not a valid ground to extend the relevant period. Notwithstanding the same, the Respondent submitted that no significant local discussions occurred following the termination of the Complainant’s employment. 

Section 6(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 6(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.”

In the recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It 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 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.“

Regarding the instant case, the Complainant has stated that local discussions with management account for a portion of the delay in instigating the proceedings. In this regard, I that in all correspondence between the Complainant and the Respondent, the Respondent stated that all statutory entitlements were paid. At no point did the Respondent resile from this position or lead the Complainant to believe that they were in active discussions regarding the resolution of the dispute. Having regard to the same, these discussions would not have prevented the Complainant from lodging the complaint within the six-month period, should he have been minded to do so. I further note that the Complainant stated that throughout this process, and until September 2020, he was unaware of the existence of a third-party body that might adjudicate the dispute. This being the case, it is evident that this the reason for the delayed lodging of the proceedings. 

In this regard, and noting the relatively low threshold of reasonableness imposed on the Complainant, I find that his lack of knowledge in this regard is not a justifiable excuse for the delay in instigating the proceedings. Consequently, I find that the Complainant has not demonstrated “reasonable cause” to extend the consignable period for the purposes of this claim.

Given that it is agreed that no breaches occurred within the six-month period prior to the lodgement of this complaint, I find that the complaint is not well founded, and the Complainant’s application fails.

Following the referral of the complaint and the hearing of the matter, Section 27 of the Organisation of Working Time Act empowers me to declare that the complaint either is or is not well founded.

Having regard to the totality of the evidence presented, I find that the matter is not well founded and consequently I do not find in favour of the Complainant.

Reasonable Cause, Local Discussion