FULL RECOMMENDATION
PARTIES : RYANAIR DAC RYANAIR DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) ADJ-00011835 CA-00014891-001. This is an appeal by Mr Jaroslav Strnad (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00011835, dated 18 July 2018) under the Unfair Dismissals Act 1977 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 22 August 2018. The claim under the Act is one of alleged constructive unfair dismissal. The Adjudication Officer deemed the claim to be out of time. The Complainant had resigned his employment with Ryanair DAC by email and ‘with immediate effect’ on 9 April 2017. His claim under the Act was received by the Workplace Relations Commission on 9 October 2017. The Court heard the appeal in a virtual courtroom on 17 September 2021. Out of Time The Complainant attended the within appeal as a litigant in person. However, he was legally represented at the first instance hearing and Counsel prepared and submitted a comprehensive written submission on his behalf in advance of this hearing. Counsel’s submission contends that the Complainant’s complaint under the Act was referred to the Workplace Relations Commission within time. Counsel cites what he refers to as ‘persuasive authorities’ from a number of common law jurisdictions in support of his contention in this regard. Although the Complainant appears not to have expressly advanced the claim that his complaint was not brought outside of the statutory limit at the within hearing, Mr Rowan BL for Ryanair DAC (‘the Respondent’) did address the issue in his oral submission to the Court. It is, therefore, appropriate to deal with this issue briefly at the outset of this Determination. Section 8(2) of the Act provides: “(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 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.” Section 18(h) Interpretation Act 2005 deals with the interpretation of periods of time that are set down in legislation, as follows: “(h)Periods of time.Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;” The wording of section 18(h) of the Interpretation Act 2005 is comparable to that of section 11(h) of the Interpretation Act 1937 which section fell to be considered by the High Courtin McGuinness v Armstrong Patents Limited[1980] 1 IR 289. In that case, McMahon J, held that in enacting section 11(h), the Oireachtas had opted for a different approach to that of the “well-settled rule of law in England” whereby “When a period of time prescribed by a statute is defined as a period ‘from’ a particular event … the day of the event is excluded in computing the period.” Later in the judgment, he remarked, “I would gladly adopt any construction of [section 11(h)] which would achieve uniformity in the laws of England and of Ireland in computing periods of time, but I do not see how the provision can be construed in that way.” Applying section 18(h) of the Interpretation Act 2005 to the facts, it is apparent that the limitation period specified in section 8(2) of the Unfair Dismissals Act 1977 expired on 8 October 2017 – one day prior to the date on which the Complainant actually referred his complaint to the Workplace Relations Commission. The claim was therefore referred out of time and, if the substantive complaint is to be allowed to proceed to hearing, the Complainant must first demonstrate to the satisfaction of the Court that there was reasonable cause which prevented him giving notice of complaint within time. Reasonable Cause The Complainant submits that there were a number of issues in play in the period between his resignation and the date on which his then solicitors referred the complaint under the Act on his behalf to the Workplace Relations Commission, including the erratic nature of communications between the Complainant and his then legal team due in part to the Complainant’s own poor state of health and well-being following his resignation and his consequent tardiness in replying to correspondence. The Complainant also referred to his standard of English and that his mother was recovering at the time from a very serious car crash in the Czech Republic. 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.” In response to the Complainant’s application to the Court to extend time for reasonable cause for the reasons cited, Counsel for the Respondent referred the Court to correspondence received by the Respondent from the Complainant’s then solicitors on 26 June 2017. It is abundantly clear from that correspondence that the Complainant’s then Solicitors were in full possession of all the factual matters that the Complainant seeks to rely on in advancing his claim of constructive unfair dismissal under the Act. Furthermore, Counsel submits, neither the Complainant nor his legal team could have been in any doubt as to the Respondent’s intention to robustly and full defend the potential litigation threatened in that letter because the Respondent’s solicitors replied to that effect by letter dated 28 June 2017. Discussion and Decision Having carefully considered the Parties’ written and oral submissions, the Court finds – for the reasons set out earlier in this Determination - that the Complainant’s claim under the Act was referred to the Workplace Commission one day outside the statutory time limit specified in section 8(2) of the Act. 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’s legal team was undeniably fully briefed in relation to the substance of the Complainant’s case at least three months prior to the expiry of the limitation period and were also fully aware, in or around that time, that the Respondent was not minded to compromise any claims which the Complainant sought to advance against it. The appeal, therefore, does not succeed and the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE |
