FULL RECOMMENDATION
PARTIES : DCC VITAL ATHLONE LABS DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00009295. This is an appeal by Mr Martin O’Keeffe (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00009295, dated 12 September 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer found that the Complainant was engaged under a contract for services by DCC Vital Athlone Laboratories (‘the Respondent’) and, therefore, lackedlocus standito pursue a claim under the Act. The Complainant’s Notice of Appeal was received on 23 October 2019. The Court held a case management conference on 2 March 2021 and heard the appeal in a virtual courtroom on 21 September 2021. Preliminary Issue The Complainant’s engagement with the Respondent was terminated on 18 August 2016. However, the Complainant did not refer his complaint under the Act to the Workplace Relations Commission until 29 June 2017, some four months outside the limitation period provided for in the Act. He successfully applied for, and was granted, an extension of time to bring his claim by the Adjudication Officer who found that the Complainant’s ill-health and hospitalisation for a cardiac condition in early 2017 constituted reasonable cause that explained and justified his delay in referring his complaint under the Act. The issue of the late filing of the Complainant’s claim at first instance under the Act was raised afresh by the Respondent at the appeal. The Court heard sworn evidence from the Complainant in relation to this matter. The Complainant told the Court that he had been taken aback and in shock for some time after the Respondent had informed him in August 2016 that his services would no longer be required. Shortly after this the Complainant engaged with the Department of Social Protection. The Department conducted an assessment and deemed him eligible for Jobseeker’s Benefit, according to the Complainant. In or around this time, the Complainant also contacted a local Teachta Dála (‘TD’) on a number of occasions for advice. The TD suggested he write to the Respondent and seek a redundancy payment. The Complainant did this by letter dated 28 December 2016. He received a reply from the Respondent on 13 January 2017 refusing his request as he was not eligible for such a payment. Meanwhile, the Complainant was experiencing health issues in or around November 2016. He attended his GP who referred him for a consultation with a specialist. In January 2017, the Complainant was an in-patient at the Galway Clinic where he underwent a procedure to have a stent inserted. He remained in hospital for four or five days and was then discharged into the care of his GP. The Complainant says he was quite anxious about his well-being during this period and was very focused on regaining his health. He had a second stent inserted in March 2017. The Complainant also told the Court that he was unaware of the Workplace Relations Commission for a long period after his engagement with the Respondent had ceased. It was the TD, he says, who suggested to him that he refer a complaint under the Act. The Complainant eventually filed his complaint, as stated previously, on 29 June 2017 using the on-line facility for doing so. He was contacted shortly afterwards by an official from the Workplace Relations Commission who informed him that his complaint was ostensibly out of time and that he would have to make an application to extend time, which application should be supported by relevant documentation. The Complainant furnished the Commission with information in writing in relation to his medical condition and the medical procedures he had undergone. His application for an extension of time to refer his complaint outside the statutory six-month limitation period was considered by the Adjudication Officer when his case under the Act came on for hearing on 10 December 2018 and was decided in his favour. Counsel for the Complainant, in making his submission on the preliminary issue before the Court, relies, in particular, on two previous determinations of the Court:Cementation Skanska (formerly Kvaerner Cementation Limited) v CarrollDWT0425 andSalesforce.com v LeechEDA1615 wherein the Court engaged in a detailed analysis of the meaning to be given to ‘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, 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, the Court – having referred to the Determination in Cementation 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.” The latest date on which the Complainant herein could have referred his complaint under the Act to the Workplace Commission within that statutory timeframe for doing so was 17 February 2017. Nevertheless, he delayed referring his complaint under the Act until 29 June 2017 – some four months outside the six-month statutory time limit. He seeks to explain and justify that lengthy delay on the basis of his ill-health and the need to undergo a medical procedure in January 2017 and again in late March 2017. The Court – having considered carefully the Complainant’s sworn evidence in relation to the various steps he took after the cessation of his engagement with the Respondent – finds that the Complainant has not met the threshold to establish reasonable cause that both explains and affords an excuse for his considerable delay in referring his complaint to the Workplace Relations Commission. In his direct evidence, the Complainant told the Court about his engagement with the Department of Social Protection and of the steps he took in late December 2016 to request a redundancy payment from the Respondent. His health condition had been diagnosed in November and he underwent a scheduled procedure in January that required him to remain in hospital for some four or five days. The Court is satisfied that the Complainant’s condition – as evidenced by his engagement with the Respondent between the date of diagnosis in November 2016 and the first stent operation in January 2017 – was not so serious as to explain and excuse his delay until 29 June 2017 in referring his complaint under the Act to the Commission. Having so determined the preliminary issue, it is unnecessary for the Court to determine any further issues in this appeal. The decision of the Adjudication Officer is, therefore, set aside in full. The Court so determines.
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