FULL RECOMMENDATION
PARTIES : THERMOPRO LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s)ADJ-00025466 This is an appeal by Mr. O’ Brien, ‘the Complainant’, of a Decision of an Adjudication Officer, ‘AO’, of the Workplace Relations Commission, ‘WRC’ under the Unfair Dismissals Act, ‘the Act’. The Complainant was employed by Thermopro Ltd., ‘the Respondent’ from 15 January 2018 to 28 January 2019 when he was dismissed. The Complainant submitted a complaint under the Act to the WRC on 20 November 2019. The AO found that the complaint had been submitted outside of the 6 months provided for in s. 8(2) of the Act and that the Complainant had not established ‘reasonable cause’ for the delay such that the AO could use his discretion to permit an extension of this period as per s.8(2). The Complainant appealed this Decision to this Court. The Court decided to hear arguments on this preliminary point only, prior to any possible consideration of substantive arguments. Summary of Complainant arguments There were extenuating circumstances beyond the control of the Complainant. The Complainant is an only child. His mother is his father’s full-time carer and she had a series of major health events through 2019. The Complainant had to drive her to a considerable number of medical appointments in another county in that period. A report from the doctor attending the Complainant’s mother was provided to the Court. The Complainant had been concerned about possible repercussions for him if he took a case against the Respondent. In July or August 2019, the Complainant was unsure of the exact date, the Complainant had been approached by a HR expert who assured him that he could take a case, even though there was a six month limit and that he had a case that could be brought to the WRC. As per the requirements set out inCementation Skanska v Carroll DWT 38/2003the reasons for the delay made sense and were not irrational or absurd. As per the requirements set out inSalesforce v. Leech EDA 1615,the factors to explain the delay had not ceased before the complaint was presented as the illness of the Complainant’s mother was ongoing beyond the date that the complaint was submitted. The Respondent delayed the opportunity for the Complainant to appeal. While the Complainant accepts that he set himself up as a self employed contractor in the period concerned, he had considerable help in doing so. Summary of Respondent arguments. The Respondent set out the reasons for dismissal in a letter dated 25 February 2019 and advised the Complainant that he had 7 days to appeal. He did not do so. The Complainant secured alternative work on 25 February 2019. He continued in that role for 16 weeks, then he says that he left the role due to his mother’s ill health and became a self employed contractor. S. 41 (6) and (8) of the Workplace Relations Act, 2015 set out that a complaint shall not be entertained after 6 months from the date to which the complaint relates save where an extension of a further 6 months may be granted if it is established that the delay was due to reasonable cause. The law on what constitutes ‘reasonable cause’ is well settled. InErvia v. Healy, PWD20/20,the Court reviewed the legally applicable principles set out in ‘Cementation Skanska’and confirmed that the role of the Court is to consider ‘whether an extension of time should be given for good reason’. Neither an ignorance of the law or reliance on internal procedures are accepted as justifying the failure to submit a claim within the relevant period, see alsoBrothers of Charity, Galway v. Kieran O’ Toole, EDA 177andMinister for Finance v. CPSU and Ors, (2007) 18 ELR 36. InPJ Personnel v. Maguire, AWD201the Court noted that the test principles in’Cementation Skanska’drew heavily on the observations by the High Court inDonal O’ Donnell and Catherine O’ Donnell v. Dun Laoghaire Corporation (1991) ILRM 30that a plaintiff must show that there are reasons that both explain a delay and afford a justifiable excuse for a delay. InSalesforce v. Leech, EDA 1615it was not accepted that the Complainant’s pregnancy and a broken wrist justified a delay of three months in making a complaint. Despite the illness of the Complainant’s mother, during the 6 months when he could have appealed he was able to secure an alternative job and then to set himself up in business as a self employed contractor. Further, while ignorance of the law cannot be an excuse for failing to adhere to time limits, the Complainant’s contract of employment referred to the disciplinary process. It is noteworthy that the delay runs to almost 4 months. No medical evidence was submitted to suggest that the Complainant himself was unwell. The WRC web-site is informative and easy to navigate. The applicable law Unfair Dismissals Act, 1977-2015. 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, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General . Deliberation. The Court set out with considerable clarity the requirements to establish reasonable cause in order to justify the exercise of discretion for extending time limits in the case ofCementation Skanska v. Carroll, WTC 03/2.As both parties referred to the case in their presentations to the Court, it is worth quoting the most relevant paragraph from the Court’s Determination in full, as follows; 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 argues that the reasons advanced are neither irrational nor absurd and, therefore, they meet the test set by the Court. However, that is only a part of the test set out above. It is of significance also that the Complainant is required to satisfy the Court that, as a matter of probability, had those circumstances not been present, the Complainant would have initiated the complaint in time. The Court has no doubt that the Complainant was required to deal with difficult family circumstances in the period in question. However, what he is required to establish to the Court’s satisfaction is that, had these circumstances not existed, he would have submitted his claim in time. In this regard, the Court notes that at some time around July or August, the Complainant says that he was approached by a HR practitioner and advised of his rights. The significance of this is that, even when so advised, the Complainant failed to submit his complaint for a further 3 or possibly 4 months. It may well be that the Complainant was, even at the time of such advice, outside the six months’ period and that any complaint submitted at that point would still have required him to put forward justification for delay but common sense suggests that it is considerably easier to offer credible explanations for delay when the delay is for a short period. The clear intention of the Act is that appeals should be made within 6 months and that any extension of that period requires explanation, such that a reasonable person would conclude that such an extension is reasonable. In this regard, the Complainant relies on the family commitments caused by his parents’ ill health. However, as the Respondent noted, whatever difficulties this unfortunate situation may have caused for the Complainant, he was able to secure alternative employment and to set himself up subsequently as self-employed within the six months period after his dismissal. A reasonable interpretation of these facts must lead to the inevitable conclusion that as the Complainant was capable of achieving these, commendable, outcomes, most likely he was capable of completing a complaint form and submitting it to the WRC, in that period. As a matter of probability, it is difficult to see how the Court might conclude otherwise. Therefore, the Court must concur with the AO that no reasonable cause has been advanced such as to justify the Court in exercising its discretion to extend the period for the submission of the complaint. Determination. The Decision of the Adjudication Officer is upheld.
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