FULL RECOMMENDATION
PARTIES : MINISTER FOR DEFENCE DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No's:ADJ-000128801 CA-00016895-001, CA-00016895-002 The Complainant is a former member of the Defence Forces. He referred a complaint to the Workplace Relations Commission on 17 January 2018 alleging that as a result of submitting a complaint of bullying and harassment he was subjected to penalisation in breach of Section 27 of the 2005 Act. Preliminary Issue There are two preliminary issues before the Court (i) whether the claim is in time and (ii) an application for an extension of time. At the outset, Ms Cathrina Keville, BL, on behalf of the Complainant, submits that there is reasonable cause to grant an extension of time in this case. As a result of making a complaint of bullying and harassment (Redress of Wrongs) about his commanding officer, the Complainant was subjected to a military police investigation, which included an oppressive interview conducted on 6 April 2017 (the actionable complaint). The outcome of the military police investigation could have led to a criminal conviction and a custodial sentence of up to two years. If the Complainant had lodged a claim to the WRC before the investigation concluded, this could have prejudiced the outcome of the investigation against him. In circumstances where his initial complaint of bullying and harassment had triggered a military investigation, he was in genuine fear for his future. The Complainant submits that there was both a valid reason and a justifiable excuse for the delay in lodging the claim in circumstances where the complainant was under threat of a criminal finding and did not want to prejudice the outcome of a military police investigation. The complaint would have been lodged within time had that reason not existed. He acted without delay in lodging his claim, given the Christmas period, once the outcome of the investigation issued. In addition, and in the alternative, the Complainant submits that Section 27(1) of the 2005 Act defines penalisation as ‘any act or omission by an employer…’. In this case, the Complainant was penalised by an actionable omission on the part of the employer when it failed to inform the Complainant of the outcome of the investigation until December 2017. Although the military police investigation concluded in June 2017, the complainant had no way of knowing this until the outcome of the investigation was communicated to him. As a result, he continued to labour under a detriment during the six-month period. Every day that he did not know the outcome of that investigation was a discrete act of penalisation for the purposes of Section 27 of the Act. The actions of the employer penalised the employee and led to a situation where he found his claim to be statute barred. Finally, Counsel submits that the complainant was subject to ongoing penalisation in the six-month period before lodging his complaint and should the Court find there to be a continuum of penalisation, this would apply to bring the claim within the six-month period. Mr Peter Leonard, BL, on behalf of the Respondent, submits that the claim is out of time and the Complainant has not established any grounds or reasonable cause for the extension of time. The Respondent disputes that any act of penalisation occurred during the operative period before the Complainant lodged his complaint. A Redress of Wrongs was submitted by the Complainant and given the severity of that complaint a military police investigation was required. The military police investigation concluded in June 2017, at which point the investigation report was sent to another body for review. The only thing that could be considered penalisation is the manner in which he was treated during the military police investigation. The last possible date for this was the 20 June 2017. The Respondent submits that no contravention has been identified that occurred within the six-month period prior to the lodgement of the complaint. The Respondent relies on the decision of Hogan J inHealth Service Executive v McDermott [2014]IEHC 331, where the meaning of the term “within 6 months beginning on the date of the contravention which the complaint relates”was considered in some detail. Hogan J held: 4. … the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided. 15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time. The Respondent submits that the complaint made to the WRC was vague and only subsequently identified as relating to the military police investigation. This concluded on the 20 June 2017 and so is out of time. In response to the Complainant’s application for an extension of time, the Respondent submits that if the complainant was of the view that he was oppressively treated during a military police investigation, and that the oppressive treatment was as a result of submitting a Redress of Wrongs, it was open to him to make a complaint and lodge a claim with the Workplace Relations Commission at any point. Waiting to see what happens cannot be considered a reasonable excuse. The Respondent citedEDA1621 Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoywhere the Labour Court referring to the use of internal grievance procedures stated“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.” Relevant Law Time Limits Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows: “(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.” “(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.” Penalisation Section 27 of the Safety, Health and Welfare at Work Act, 2005, provides as follows “(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.”
Was the compliant submitted in time? The first matter for the Court to determine is whether a contravention of the 2005 Act occurred within the six-month timeframe before the Complainant lodged a complaint with the Workplace Relations Commission. The claim was lodged on 17 January 2018, which means the relevant period for consideration is 8 July 2017 to 17 January 2018. In considering whether this complaint is out of time, the Court must have regard to the relevant authority of Hogan J inHealth Service Executive v McDermott [2014] IEHC 331. Applying the law as set out by Hogan J, the Court considered how the initial complaint to the Workplace Relations Commission was framed by the Complainant. The WRC complaint form sets out the complaint in the following terms: “I submitted a Redress of Wrongs pursuant to S114 of the Defence Act 1954 on the 21st December 2015 in respect of my treatment by my superior officer. I was subjected to penalisation by my employers in breach of Section 27 of the Safety Health and Welfare at Work Act 2005 as amended. I also submitted a complaint of bullying on the 3rd November 2016 and this also resulted in penalisation.” In reviewing the above, the Court finds that the complaint has its origins in an action of the respondent that commenced in 2015 and continued into 2016. The Complaint was submitted to the Workplace Relations Commission in January 2018 some three years later. Had the complaint to the WRC been framed in a different manner relating to a specific contravention from July 2017 onwards then the complaint would clearly be in time for the purposes of Section 41(6) of the Workplace Relations Act, 2015. However, as framed, the complaint relates to a period that commenced in 2015 and continued into 2016 which is outside the six-month timeframe provided in Section 41(6). Notwithstanding the lack of detail in the WRC complaint form, the complaint was subsequently identified by letter from the Complainant’s solicitor as relating to a formal criminal investigation by military police. In submissions to the Court, no specific contravention or act of penalisation occurring within the six-month period before the Complainant lodged his complaint was identified. Instead, it is argued that the Complainant was subject toongoingpenalisation up until December 2017, as he laboured under a detriment until the outcome of military police investigation was known to him and, furthermore, the failure to inform him of the outcome was, in and of itself, an act of penalisation by the employer. Applying the law as set out by Hogan J, it is clear that Section 41(6) requires a complainant to set out a specific contravention or act of penalisation that occurred in the six-month period before lodging a claim, in order to ground a claim under the Act. The wording in Section 41(6) differs from time limits under employment equality legislation where consideration of continuing or ongoing contraventions may be permitted. Section 77(5)(a) Employment Equality Acts, 1998–2015 allows for claims to be referred within six months from ‘thedate of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence’. By contrast the time limit set out in Section 41(6) specifies that a complaint cannot be entertained unless it is presentedafter the expiration of the period of 6 monthsbeginning on the date of the contravention to which the complaint relates. The 2005 Act does not provide for claims to be considered from the date of themost recentcontravention. The claim must be submitted within six months of the contravention to which the complaint relates. In the circumstances of this case, the Court finds that the military police investigation concluded in June 2017 and no specific contravention or act of penalisation occurring in the six-month period prior to lodging a claim was identified to the Court. As a result, the complaint was submitted outside the six-month time limits for bringing complaints under the Act. Application for an Extension of Time The second matter for determination by the Court is an application for an extension of time. The application for extending time is made on the basis that the Complainant’s failure to present a complaint within time was due to reasonable cause. Should the Court find a reasonable cause for the delay in lodging the claim, the timeframe for considering when a contravention occurred can be extended from six months to twelve months. An extension of time if granted in this case would allow the relevant period for consideration to be extended from 18 January 2017 to 17 January 2018. This timeframe would encompass an act of penalisation that is alleged to have occurred on 6 April 2017. The established test for deciding if an extension of time can be granted for reasonable cause is that formulated by this Court in Labour Court Determination DWT0338,Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. The test was set out 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 test formulated inCementation Skanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal 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.” For this Court to grant an extension of time the Complainant must both explain the delay and offer a justifiable excuse for the delay. The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time. Finally, the Court must satisfy itself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified. In the case before this Court, the Complainant submits that there was both a valid reason and a justifiable excuse for the delay in lodging the claim in circumstances where he was under threat of a criminal finding and did not want to prejudice the outcome of a military police investigation. The complaint would have been lodged in time had that reason not existed. He acted without delay in lodging his claim, given the Christmas period, once the outcome of the investigation issued. The Court notes that the Complainant in this case was legally advised during the operative period for lodging a claim of penalisation. While it is argued that his solicitor had no powers to look into the future to anticipate the outcome of the criminal investigation and that any finding of criminal charges would have prevented the complainant from progressing such a claim, the Court does not accept that a criminal investigation prevented a claim of penalisation being lodged within time in the first instance. Finally, the Court does not accept that the Complainant acted without delay in lodging the claim once the outcome of the military police investigation was communicated to him. The outcome letter issued on 19 December 2017 and, notwithstanding the intervening Christmas holiday period, the claim was not lodged to the Workplace Relations Commission until 17 January 2018, over four weeks later. This cannot be viewed as the Complainant taking immediate action once notified of the outcome. The Court finds, in the circumstances of this case, that the Complainant has not set out reasons such that justify the delay in bringing proceedings under the Act. Accordingly the Court rejects the application to extend time. Determination The complaint is statute barred. The appeal is not allowed. The Court further determines that no good grounds for extending time have been advanced by the Complainant and accordingly rejects this application also. The appeal is not allowed. The decision of the Adjudication Officer is upheld. The Court so determines.
|
