ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00029253

Parties:

Complaint(s):

Date of Adjudication Hearing:  13/10/2021

Workplace Relations Commission Adjudication Officer:  Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015  and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and/or 7 of the Terms of Employment (Information)Act 1994 and/or Section 27 of the Organisation of working Time Act 1997 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

Preliminary Matter of Time Limits

The complainant’s complaint was received by the WRC on the 30th.July 2020. In his complaint form the complainant stated that his employment ended on the 17th.Dec2019 when he was constructively dismissed. The complainant’s representative made the following written submission to the WRC:

 “We understand that the information submitted does not fall within the statutory timelines. However, we feel due to the following circumstances the delay in submitting the details was due to reasonable cause as follows:

The complainant engaged with his HR Consultant and subsequent to this the HR Consultant wrote to the respondent on April 10th and May 22nd inst. Both items of correspondence are enclosed with this letter for your attention. You will note that in both pieces of correspondence reference was made to a claim being made to your good offices should the matter not be resolved. The complainant relied on this correspondence in the context that the HR Consultant would submit the claim to your offices. Further to this a holding letter should have been issued to your offices explaining there were ongoing attempts to resolve the issue, while reserving the right to submit a claim should these efforts not resolve the matters at hand. However, it subsequently transpired this was not followed through on. On discovering this the complainant immediately contacted HR Desk and we subsequently submitted the claim. We submit that the failure of the HR Consultant initially engaged by the complainant to submit a claim despite him strongly outlining such action in his correspondence, is in no way any fault on the complainant’s part.

Therefore, we ask your good offices to look favourably on this matter and allow the case to be heard having considered the reasonable cause outlined above.”

Correspondence issued by the complainant’s former representative dated the 10th.April 2020 and the 22nd. May 2020 to the respondent was submitted into evidence and it was contended that same supported the complainant’s contention that there was reasonable cause of the delay in making the complaint. It was submitted  at the hearing that the complainant had a right to make his case , that he had good faith in his former representative and that matters had been compounded by the closure of offices consequent to Covid. Under cross examination the complainant accepted that he had been aware of the statutory time limit for making a complaint. When asked why he did not lodge a complaint himself he replied that he was unaware he could do it himself. He said he had left the information with his former representative and assumed he was dealing with it. He referred to offices being closed because of the lockdown and he approached the former representative as the time deadline approached.

In a replying submission, the respondent submitted that the complainant’s representative had acknowledged that the complaint did not fall within the 6-month statutory time limit and that the complaint was consequently out of time. It was argued that this was a matter of fact and that the dropping of the ball by the HR consultant did not constitute reasonable grounds for the delay in making the complaint.

I have reviewed the evidence presented at the hearing and the submissions advanced by the parties. The complainant’s complaint was received by the WRC on the 30.07. 2020.Accordingly, the cognisable period runs from the 31st.January to the 30th.July 2020.

 I do not accept the arguments advanced at the hearing by the claimant in relation to the matter of the lockdown and Covid influencing the delay in making his complaint as these arguments were not advanced in his documented exchanges with the WRC administration about the delay in submitting the complaint.

 The established test for deciding if an extension should be granted for reasonable cause is set out in WTC0338 Cementation Skanska v Carroll. The test is set out in the following terms:

“It is the Court's view that in considering if reasonable cause exists, it is for the

complainant 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 complainant at the material time. The complainant’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 complainant should satisfy the Court,

as a matter of probability, that had those circumstances not been present he

would have initiated the claim in time.

At the hearing the claimant acknowledged that he was aware of the time limit for making the complaint but failed to offer a plausible or cogent explanation for not lodging the complaint in time. He relied entirely on the tardiness of his then representative but failed to show why this prevented him from lodging the complaint in time by either lodging the complaint himself or pursuing his representative to do so.

 Accordingly, I find that the claimant has not met the test of reasonable cause set out in WTC0338 Cementation Skansa v Carroll and consequently I deem the complaints to be out of time.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act 1994 of requires that I make decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

 Section 27 of the Organisation of Working Time Act 1997 requires that I make decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

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:  29-11-2021

Workplace Relations Commission Adjudication Officer:  Emer O'Shea

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