FULL RECOMMENDATION
PARTIES : SHOPIFY INTERNATIONAL LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) ADJ-00026211 CA-00033253-001 This is an appeal by Ms Halima Vickers (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00026211, dated 23 June 2021) under the Terms of Employment (Information) Act 1994 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 3 August 2021. The Court heard the appeal in a virtual courtroom on 13 October 2021. Preliminary Issue The Complainant was employed by Shopify International Limited (‘the Respondent’) from 28 May 2018 until her resignation took effect on 27 December 2018. She referred her originating complaint under the Act to the WRC on 18 December 2019 – almost a full twelve months after the date of her resignation. Her application for an extension of time to bring her complaint was refused by the Adjudication Officer. She has appealed from that decision to this Court. The Complainant told the Court that she had initiated a separate complaint (under the Employment Equality Act 1998) to the Workplace Relations Commission within time following her resignation from the Respondent. That matter came on for hearing in June 2019. The Adjudication Officer to whom that matter was assigned for hearing concluded that the subject matter of the complaint was not appropriately referred under the 1998 Act and appears to have so informed the Complainant at the hearing in question. The Complainant appealed that decision, unsuccessfully, to the Labour Court. The Complainant also told the Court that she sought advice from the Citizens Information Service and subsequently became aware of the possibility of referring the within complaint under the 1994 Act. She therefore referred the within complaint which, as stated previously, was received by the Workplace Relations Commission on 18 December 2018. The Complainant was fully alive to the fact that she had referred the within complaint outside the six-month statutory time-limit specified in section 41 of the Workplace Relations Act 2015. This is evidenced by the following statement included by the Complainant in the narrative section of her complaint form: "Good morning, I am filing this complaint and I am asking you to grant me a hearing as I am still within the 12 months period after my end of employment with Shopify and I know that under special circumstances, I can still be granted a hearing by a judicator (sic), within that period.” When pressed by the Court to state exactly what she was relying on as justification for her delay in referring the within complaint, the Complainant stated that she was unable to afford to avail herself of the assistance of a lawyer and was dependent on the information she received from the Citizens Information Service and what she could glean from the Workplace Relations Commission’s website. She said she was unaware of the 1994 Act until shortly before she referred the within complaint. Mr Bell BL, for the Respondent, submitted that the Complainant cannot rely on her lack of knowledge of the law as a basis for seeking an extension of the statutory limitation period. Reasonable Cause This Court has considered in some detail in many of its previous Determinations the correct meaning to be ascribed to the term ‘reasonable cause’ as the test for the justification for a delay on the part of a Complainant in referring complaints at first instance under employment legislation. InCementation Skanska (formerly Kvaerner Cementation Limited) v CarrollDWT0425, the Court stated: “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 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. In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material 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.” InSalesforce.com v LeechEDA1615 the Court – having referred to the Determination inCementation Skanska– stated: “It is 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.” Discussion and Decision Having carefully considered the Parties’ written and oral submissions, the Court finds that the Complainant’s claim under the Act was referred to the Workplace Commission almost a full twelve months after her employment with the Respondent had ceased. Furthermore, the Court finds that the reasons cited by the Complainant for the aforementioned delay do not amount to reasonable cause for that delay, particularly in circumstances where the Complainant had had recourse to the Citizens Information Service at a very early stage and had opted to refer a complaint against the Respondent, under another Act, to the Workplace Relations Commission. The appeal, therefore, does not succeed and the decision of the Adjudication Officer is upheld. The Court so determines.
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