Complainant

Respondent

Parties

Margaret  Curran

Health Service Executive

Representatives

 Comyn Kelleher Tobin Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041479-001

08/12/2020

The complainant submits that she was forced to leave her job owing to the conduct of the respondent.  The respondent denies this complaint.

On the first day of the hearing two preliminary issues were raised by the respondent as to whether the complainant had submitted her complaint within time and whether the complainant was an employee of the respondent.  At the first day of the hearing submissions were read and following the first day of the hearing, there were further submissions from parties on the preliminary issue of whether the complaint was within time.  A second hearing was held on 27th May 2022.  Parties were advised on 07th April 2022, in advance of the second day of the hearing, that the purpose of the second day of the hearing, was to hear from parties regarding the preliminary issue of whether the complaint was within time and that the adjudicator would then “make a decision on this preliminary issue of time limits after that (second) hearing”.

The respondent read their submissions at the first day of the hearing.  The respondent raised two preliminary issue.

Preliminary Issue: Is the complaint out of time?

No evidence was taken from the respondent at the hearing as the respondent submitted it was not necessary in dealing with the preliminary issue which were legal issue and which they raised.  The respondent submitted that the complaint was out of time as the complainant submitted her complaint on 8th December 2020 and submitted that she left her job on 4th June 2015 and had failed to provide services to the respondent since 19th August 2014.

The respondent dismissed the complainant’s assertion that she failed to lodge her complainant until December 2020 as she did not receive confirmation from the Scope Section that she was an employee until July 2020 as it still did not bring the complainant within 12 months of the date of the relevant dismissal and does not permit the WRC to extend the time limit.

It was submitted that the complainant cannot rely on ignorance of the law to explain her failure to submit her complaint in a timely manner.  Case law referenced included ADJ-00024851 - A Holistic Therapist v. A Holistic Therapy Business (Re  failure to present due to awaiting SCOPE decision), ADJ-00023011 - A Sales Assistant v A Retailer, The National Museum of Ireland v Minister for Social Protection [2016] IEHC 135, Minister for Finance v Civil and Public Services Union & Ors [2007]18 E.L.R. 36, RPD207 Dublin Enterprise & Technology Centre v Gerard Daniel.

In a further submission following the hearing the respondent again advised that the complainant had submitted that she was constructively dismissed on 4th June 2015, the Complaint was lodged on the 8th December 2020 and it was submitted that the Complainant has accepted in her evidence during the Hearing on 4th March that she was advised by the WRC before she submitted her complaint on 8th December 2020 that she was out of time to submit a Complaint. The respondent submitted that the Complainant, in post-hearing written Submissions dated 13th March 2022, had again confirmed that she was advised by the WRC in 2015 that she was out of time.

It was clear that that the complaint is significantly out of time, and obvious that the Complainant was fully aware that complaint is out of time and that nothing which might emerge from the Hearing of the substantive matters could possibly change the fact that the Complaint was lodged a number of yearsafter the Complainant asserts she was constructively dismissed.  If the complaint is out of time then the Adjudication Officer, has no jurisdiction to hear the substantive complaint, to adjudicate on the complaint or indeed adjudicate on any other preliminary point which the Respondent may make.

The respondent submitted that the 19th August 214 was the last time that the complainant provided services to the respondent.  The complainant has given evidence that she engaged with a solicitor in 2014 and that ignorance of the law is not sufficient reason to bypass it.  The complainant submitted her complaint to the WRC 5.5 years after her work with the respondent and therefore, is out of time.

The complainant submits that she was unfairly dismissed.  The complainant submitted and gave evidence on the preliminary issues that the complaint is within time and that any failings were not of her doing or her fault.

Preliminary Issue: Is the complaint out of time?

In response to the first preliminary issue that the respondent raised, namely that the complaint was out of time; the complainant submitted that she began work as an Art Facilitator in January 2011 with the respondent.  On 29th July 2014 the respondent received a complaint from a family member of one of their service users.  On 7th August 2014 the complainant was advised that the respondent was suspending the complainant’s services as a precautionary measure and that a preliminary screening of the complaint would be conducted.  On 14th August 2014 a meeting took place with the respondent and the complainant where the complainant was advised that following the preliminary screening a formal investigation would proceed and that the complainant’s services would remain ceased.  The complainant was advised on 13th October 2014 that she was not an employee of the respondent but a provider of services to the respondent.  An exchange of correspondence took place between the complainant and the respondent and on 18th November 2014 the complainant was advised by the respondent that there was no specific policy to deal with the allegations brought against the complainant and that the complainant was on a “contract for services, not a contract of services”.  Further correspondence was exchanged including between the complainant’s solicitor and the respondent and on 24th August 2015 the complainant advised that she was left with no alternative but to leave her position.

The complainant gave evidence that she continued to pursue all avenues available to her to have her case heard including that she was an employee of the respondent.  In July 2020, the complainant was advised by a Deciding Officer of the Scope Section of the Department of Employment Affairs & Social Protection (DEASP) that the complainant was insurable for all benefits and pensions and that the complainant was “employed under a contract of service and that normal employer/employee relationship existed”.  The respondent continued to dispute that the complainant was an employee and on November 3rd 2020 the respondent replied that there was “no mechanism….to further appeal an appeals process”.  On 8th December 2020, the complainant’s complaint was received by the Workplace Relations Commission.

The complainant gave evidence of her unhappiness and the distress this issue has caused and that the respondent has continuously hindered her in progressing her complaints.  A number of people wrote to the respondent outlying their support for the complainant including a petition to reinstate the complainant, dated 28th October 2014.  It was her evidence that she had made contact with the WRC in 2016 and at the second day of hearing, the complainant said she was correcting her evidence and said it was 2015 that she in fact had contacted the WRC and not 2016.  She said had been advised that if she submitted a complaint, it would be considered out of time.  The complainant submitted that the advice she got from the WRC was incorrect as she was suspended at the time and therefore, still in employment with the respondent.  The complainant accepted she did not challenge this communication from the WRC as she was used to being rejected and disappointed at this time, having experienced almost one year of continuous attempts by the respondent to subvert the course of natural justice through stonewalling, breached procedure and distortion of the truth.  The complainant submitted that the WRC had given her incorrect information as they assumed her termination was August 2014 when in fact the true date of her termination was almost a year later in 2015 and that the complaint would have been well within the timeframe for making a complaint.

The complainant gave evidence that she has spent her time seeking help from organisations who have been unable to help, and she had been faced with numerous hurdles. The complainant engaged in a Protected Disclosure between 2016 and 2020 and extensive futile communication under Freedom of Information legislation in the hope of receiving justice. What transpired instead of justice was four years of stonewalling, time wasting, and biased unprofessionalism at the taxpayers’ expense.

The complainant received advice from the WRC again in 2017 to make contact with the SCOPE section which she did in December 2017.  It was 2020 before the complainant finally received confirmation from SCOPE that she had the status of an employee.  The complainant then made another submission to the WRC and submitted that she was well within the WRC timeframe for making a complaint.

The complainant submitted that the case should proceed to be heard in its entirety including the substantive issue so that justice would prevail, and the substantive case be finally heard.  The complainant has experienced hardship of trauma, loss of income, reputational damage and the enormous challenge of having to re- invent herself and the case should not be dismissed on one small technicality of time that was out of her control.  The complainant submitted that at the time of her suspension she had employee status as determined by SCOPE but was suspended without pay and her rights were abused and that she did contact the WRC within the time frame required.

Under cross examination, the complainant said she could not recall who she talked to in the WRC in 2014 and that she believed contact was made on the telephone.  The complainant said she consulted with her solicitor between 2014-2015 about taking the respondent to Court but she was advised against it and that she also consulted with other organisations who deal with injustice of citizens.  The complainant said she could not afford to continue to pursue legal advice due to the expense incurred.  The complainant said she sought advice from a Politician who advised her of the various channels available to her, including protected disclosure.  The complainant said that as a lone worker, without supports, she should not be penalised for systems failure.  The complainant said that she will continue to pursue this issue through all channels available to her.  The complainant gave evidence that her last date of service was not 19th August 2014 as that was her last meeting but that her last day was 24th August 2015.

Submissions from parties were substantial with copious volume of documentation and evidence heard and, whilst I will not be referring to every letter, incident or event or reference every case law presented, I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.

At the first day of the hearing, submissions were read and witnesses took an oath/affirmation.  Two preliminary issues were raised at the first hearing.  Firstly it was submitted that the complaint was out of time and secondly that the complainant was a contractor and not an employee.  I have taken note of the complainant’s submission that the hearing should proceed in its entirety and following submissions from the respondent and the complainant after the first hearing; and as the points advanced regarding the complainant being out of time, had the potential to in the first instance result in the claim being statute barred in which case I would have no jurisdiction to hear the substantive case, parties were advised that we would deal in the first instance with the preliminary issue around whether the complainant was out of time.  The second day of the hearing, therefore, was devoted to the legal questions identified and parties were advised that a decision would be issued on the first preliminary issue of whether the complaint was out of time.  This was to ensure effective and efficient administration of justice.  

Preliminary Issue: Is the complaint out of time?

Section 8 of the Unfair Dismissals Act addresses the determination of claims for unfair dismissal and section 8(2) sets out:

(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) to 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”

The complainant set out in her complaint form that she was “forced to leave (her) job 4.6.2015” and her complaint form refers to contact with the respondent on 19th August 2015.  Her evidence at the hearing was that her employment ended on 24th August 2015.  The complaint was received by the WRC on 8th December 2020. 

The Labour Court has previously set out that the conventional approach to statutory time limits in employment rights cases is that the failure of an applicant to present a complaint in time deprives the Adjudication Officer of jurisdiction to hear the claim (UDD213 Beckton Dickinson Penel Ltd v Philip Goring).

Section 8(2)(b) of the Act allows a claim to be lodged within 12 months of the date of dismissal where the lodging of a claim within six months was prevented due to reasonable cause.  The established test for “reasonable cause” was set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338; that case sets the established test for deciding if an extension should be granted for reasonable cause within period not exceeding 12 months.  There would not appear to be any provision within the legislation to extend for a period “exceeding 12 months”.

I note that the complainant submits that she received incorrect information from the WRC and that she sought legal advice at that time.  The complainant was unable to support her allegations that she received incorrect information from the WRC with details of who may have given her such information, and furthermore, and importantly, I note the complainant’s evidence that she was in receipt of legal advice between 2014-2015. The Complainant cannot rely on ignorance of the law in seeking to extend the time limit. In general, ignorance of one’s legal entitlements, as opposed to ignorance of the facts giving rise to those rights, does not excuse a failure to present a claim in time. This was firmly established by the High Court in Minister for Finance v Civil and Public Services Union & Ors [2007] 18 E.L.R. 36.

I also note that the complainant was seeking a decision from SCOPE regarding her employment status.  This point was also addressed by Murphy J. in The National Museum of Ireland -v- Minister for Social Protection [2016] IEHC 135 where she held that was no issue estoppel in respect of a decision under the Social Welfare Acts and a claim under employment legislation that is brought to the WRC. While a decision regarding the Complainant’s employment status under the Social Welfare Acts, may be persuasive, it has no effect on a decision of an Adjudication Officer and there was nothing to prevent the complainant from submitting her complaint to the WRC, within the applicable time periods. 

In all the aforementioned circumstances I find the applicable time period for making a complaint of unfair dismissal by the Complainant has long expired.  The complaint is out of time and is accordingly statute barred.

In all the aforementioned circumstances I find the applicable time period for making a complaint of unfair dismissal by the Complainant has long expired.  The complaint is out of time and is accordingly statute barred.

Status barred, unfair dismissal, preliminary issues