ADJ-00030807

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00030807

Parties:

	Complainant	Respondent
Parties	Raimondas Staveckas	T & R Lowey International Ltd

Representatives

N/A

James McConnon BL instructed by Elena Gray Barry Healy & Company Solicitors

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00041156-001	19/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00041156-002	19/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00041156-003	19/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00041156-004	19/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00041156-005	19/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00041156-006	19/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00041156-007	19/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00041156-008	19/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)	CA-00041156-009	19/11/2020

Date of Adjudication Hearing: 23/09/2021

Workplace Relations Commission Adjudication Officer: Breiffni O'Neill

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Specifically, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

I explained the changes arising from the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021. The parties agreed to proceed in the knowledge that decisions issuing from the WRC will disclose the parties’ identities.

The Complainant as well as one witness on behalf of the Respondent gave relevant evidence at the hearing. Both witnesses gave sworn evidence while the Lithuanian interpreter made an affirmation that she would truthfully interpret the Complainant’s evidence.

Background:

The Complainant commenced him employment with the Respondent as a HGV Driver on 22 June 2011 and was paid on average approximately €500 per week. He claimed that he was unfairly dismissed, did not receive a redundancy payment, worked excessive hours, did not receive a contract of employment and was not notified when his contract was changed or when he was required to work additional hours.

Summary of Complainant’s Case:

The Complainant did not provide a written submission. On his complaint form he stated that the date of dismissal was 24 March 2020. During his sworn evidence, he stated that the last day he worked with the Respondent was 27 March 2020.

He stated that he spoke with the Revenue Commissioners in July 2020 and was informed by a member of the Revenue’s staff that his employment had been terminated by the Respondent on 27 March 2020. He acknowledged that he did not contact the Respondent directly after this and could not explain why he failed to do so.

He stated that he was unfairly dismissed, did not receive a redundancy payment, worked excessive hours, did not receive a contract of employment and was not notified when his contract was changed or when he was required to work additional hours.

Summary of Respondent’s Case:

The Respondent’s stated that the Complainant was placed on temporary lay-off on 27 March 2020 as a result of a downturn in business due to the Covid pandemic and was instructed to claim the PUP.

The Respondent’s witness stated that the Complainant was provided with a contract of employment which he refused to sign and asserted that he never worked excessive hours.

It was also highlighted that the Complainant was not dismissed and that when contact was made by with him via text message in September 2020 to offer him work, he informed the Respondent that he had been “fired”, which the Respondent denies.

Findings and Conclusions:

THE LAW

CA-00041156-001 - CA-00041156-006 and CA-00041156-008 - CA-00041156-009:

Section 1 of the Unfair Dismissals Acts 1977 states inter alia that :

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Section 41 of the Workplace Relations Act 2015 states:

(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.

FINDINGS

While both parties accept that the employment relationship is now over, the first matter to determine is the end date of the Complainant’s employment given that the Respondent stated that he was not dismissed while the Complainant stated that he did not resign and that he was in fact dismissed.

I note firstly the Complainant’s acceptance that he was not informed directly “by his employer” that his employment was being terminated and the Respondent’s assertion that the termination was not done “by his employer” as set out in the Act cited above. Indeed, I believe that the difficulty in deciding what the end date of the employment was arises because the Respondent did not in fact terminate the employment, despite the Complainant’s assertions to the contrary. Specifically, the Complainant asserted that he was informed by the Revenue Commissioners in July 2020 that he had been dismissed by the Respondent on 27 March 2020, which was the last day on which he worked with the Respondent, prior to being temporarily laid off.

Following repeated questioning, through the very helpful interpreter present at the hearing, as to why he believed the assertions made by Revenue, the Complainant reiterated on numerous occasions that he just simply did. When also asked why he did not contact the Respondent to ascertain if they had in fact dismissed him rather than relying on the assertions made by a staff member in the Revenue Commissioners, the Complainant could not explain the reasons behind his failure to do so and simply reiterated that the Revenue Commissioners had informed him that he had been dismissed by the Respondent on 27 March.

While I note that in accordance with the relevant provision of Section 1 of the Act cited above that the Complainant’s contract was not terminated “by his employer”, I am satisfied on the basis of the evidence presented to me, that the Complainant believed, following his conversation with the Revenue Commissioners in July 2020, that the end date of the employment relationship was 27 March 2020. I find that this date therefore should be deemed to be both the date of termination and the date of the contravention to which the various complaints relate.

Given that the date of termination of the employment and therefore the date of the contravention to which the various complaints relate has been deemed to be 27 March 2020, I must examine if the failure by the Complainant to refer the complaints to the WRC within the required six-month timeframe was due to “reasonable cause”.

In this regard, I note that the legal position in relation to time limits is set out in a number of Labour Court decisions.

Specifically, in the case of Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338, the Labour Court stated 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 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 that:

“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.

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 O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, 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 Department of Finance v IMPACT. [2005] E.L.R. 6. the Court re-stated that it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test.

The reason cited by the Complainant in this case as to why he failed to lodge his complaint within the 6 month timeframe provided for under Section 41 (6) of the Workplace Relations Act cited above is that it was because of the pandemic. Even if I accept the Complainant’s assertion that he was not made aware of his dismissal until July 2020, I note that he still had two months at that stage to refer his complaints to the WRC. While I accept the Complainant’s evidence that it took a number of weeks for the manual complaint form to be posted to him, given that he was unable to complete it online, this delay was not so inordinate that it prevented him from referring the complaint before the six month deadline expired on 26 September 2020.

I also note that the complaints were not referred until 19 November 2020, approximately four months after he was informed by Revenue of the purported dismissal and almost two months after the “expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates” had passed.

Bearing all of the above in mind, I find that that the explanation given for the delay in presenting his complaint is not a justifiable reason to allow an extension beyond the six-month time limit.

CA-00041156-007:

In deciding whether or not the Complainant was dismissed and is entitled to a redundancy payment, I note the Respondent’s assertion that he was placed on temporary lay off on 27 March 2020 and was instructed to claim the PUP. While it may have been preferable that the Respondent availed of the Wage Subsidy scheme, I note that this was a matter for themselves and there was no requirement to do so.

I also note the Complainant’s failure to contact the Respondent in July 2020 to ascertain whether or not he had been dismissed by a company where he had worked for nine years instead of relying on assertions by the Revenue Commissioners.

In the absence of any direct evidence to show that the Complainant was dismissed, I prefer the evidence of the Respondent and find that the Complainant is not entitled to a redundancy payment.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00041156-001