Complainant

Respondent

Parties

Philip  Julian

H&H Collections Ltd. T/A Wilde Ballybunion

Act

Complaint Reference No.

Date of Receipt

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

CA-00038553-001

22/04/2020

The Complainant commenced his employment with the Respondent on 11th September 2018 as a bar person. He was subsequently promoted to the position of Joint Duty Manager. He resigned his position on 26th September 2019.

The Respondent informed the hearing that the name of the Respondent in the WRC Complaint form as submitted by the Complainant is incorrect. There was no objection to the amendment of the name of the Respondent to reflect the correct name.

A preliminary issue of time limits arises in this case.

The Complainant resigned his position on 26th September 2019. He referred his compliant to the Director General of the WRC on 22nd April 2020.  The Complainant was informed in writing by the WRC on 11th September 2020 that his complaint does not fall within the statutory timelines. The Complainant replied by email and applied for an extension of time.

In his written submission to the WRC, the Complainant said that he was dealing with a named firm of solicitors. The solicitor he was dealing with passed away during the period of dealing with his case. The Complainant’s case was passed onto another solicitor and she informed the Complainant that nobody in the office would be able to deal with the case and pointed him in the direction of the WRC. The Complainant furnished copies of the correspondence between the Complainant, the firm of solicitors and the Respondent dated between 10th October 2019 to 27th January 2020.

The Complainant asserted in his written submission that he made contact with the WRC in March 2020 because he could not download the complaint form on any computer. The WRC staff member he spoke to said that there was an issue with downloading the forms. The staff member sent the complaint form out to the Complainant and the Complainant filled it in right away and sent it back.

At the adjudication hearing, the Complainant was unsure as to the exact dates. He submitted that he tried to download the WRC complaint form at some stage in January and in February 2020. He contacted the WRC in February or March 2020 as he couldn’t download the complaint form. He was told that a manual form would be sent to him but he did not receive it until sometime in March 2020.  He said that he filled the form within a week or so and sent it back “around 20th March 2020 ish”. The Complainant said he did not know why the form was stamped as received by the WRC on 22nd April 2020. He suggested that due to the working from home arrangements, there could be a delay on the part of the WRC in stamping the form as received.

The Complainant said that he did not want to ask his solicitor to print the form for him as he did not want to be charged for the printout. He confirmed that he did not make any attempt to ask for assistance in a local library, Citizens Information, etc.

The Respondent submits that the Complainant failed to comply with the requirements of the Act and presented his claim after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Respondent submits that the Complainant chose to terminate his employment on 26th September 2019 and referred his claim to the WRC four weeks after the 6-month time limit.

The Respondent submits that the Complainant was aware of the urgency of these matters as he consulted with legal advisors and within two weeks from the termination of his employment a letter dated 10th October 2019 arrived in the post from the Complainant’s solicitors stating that they were representing the Complainant on employment issues including termination of employment and alleging that he was constructively dismissed.

The Respondent submits that in a letter dated 7th January 2020 from the Complainant’s solicitors to the Complainant, they confirm a discussion they had with the Complainant prior to this date stating that he had 6 months from the date of termination to submit a claim. The Respondent argues that it would be reasonable to presume that at the initial consultation with the solicitors that they would have explained the process involved with particular reference to submitting a claim to the WRC and advised the Complainant that a claim, if any, would have to be submitted prior to 26th March 2020.

In a letter dated 27th January 2020 from the solicitor to the Complainant, formally letting him know that they would no longer be acting for him, they again warn him that he has 6 months from the date of termination to make a claim for constructive dismissal.

The Respondent argues that from the letter of 27th January 2020 the Complainant had almost 9 weeks to decide whether he wished to submit a claim and to ensure that he had done so within the time limit.

The Complainant received two formal warnings from his solicitors, one on 7th January and the other on 27th January 2020 that there was a time limit of 6 months to submit a claim and he failed to do so.

The Respondent submits that the excuse offered by the Complainant as to why he failed to comply with the time limit should not be accepted as a reason to allow an extension of that time limit. He acted within two weeks of terminating his employment to engage a legal firm to represent him. He could have easily asked his solicitor to assist him in printing a document or the WRC would have sent him out a copy within a day or two of a request being made. All of this could have been completed to ensure that the claim was lodged within the time limit.

Relevant law

Section 8(2) of the Unfair Dismissals Act, as amended provides as follows:

“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.”

The Complainant resigned his position on 26th September 2019. Therefore, in line with the limitation period provided for in Section 8(2) of the Act, his claim for redress was required to be initiated by 25th March 2020. The WRC complaint referral form was received on 22nd April 2020. The Complainant requested an extension of time in accordance with subsection (b).

In Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:

“It is the Courts 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 his or her 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 length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

“The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

-The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

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 the complaint 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. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

In respect of the Complainant’s application for an extension of time, I find that the Complainant had the benefit of legal advice from October 2019. He was made aware of the applicable time limits by his legal advisers on at least two occasions. In their correspondence dated 7th January 2020, the Complainant’s solicitor stated:

“As we discussed you have 6 months from the date on which your employment was terminated to make a claim for constructive dismissal.”

In the correspondence dated 27th January 2020, the Complainant’s solicitor said again:

“As you are aware, you have 6 months from the date of termination of your employment to make a claim for constructive dismissal.”

While the Complainant was not able to provide the hearing with any specific dates, he said that the delay in referring his complaint to the WRC was due to the difficulties he encountered while downloading the WRC complaint form at unspecified dates in January and February 2020. He said that he contacted the WRC at some stage in March 2020 and received a manual form. He said that he filled in the form “right away”,“within a week or so” and sent it back “around 20th March 2020 ish”, which, I note, wouldbe within the time limit of 6 months. He appeared to suggest that there could be some delay on the WRC side as a result of working from home arrangements and his form could have been stamped as received later than it actually was. In that regard, I note that the WRC complaint form is signed and dated by the Complainant. The date on the form is 19th April 2020, which was a Sunday. Therefore, I find the Complainant’s assertion that he sent the form on or around the 20th March 2020 to be implausible.

Having carefully considered the evidence before me, I have concluded that the Complainant has not shown reasonable cause to allow the claim to proceed in circumstances where the complaint was referred later than six months from the date of dismissal.

I find that the complaint has not been referred to the Director General of the WRC within the time limits provided for in Section 8(2) of the Unfair Dismissals Acts. Accordingly, I do not have jurisdiction to inquire into the complaint.

Unfair dismissal – time limit- no reasonable cause