MWD221

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00026250 CA-00033392-005

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 26 May 2021. A Labour Court hearing took place on the 18 August 2022. The following is the Court's Determination:




DETERMINATION:

Background to the Appeal

This is an appeal by Mr Kevin Ireland (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00026250/CA-00033392-005, dated 29 April 2021, under the National Minimum Wage Act 2000 (‘the Act’). The Adjudication Officer deemed the complaint to be out of time. Notice of Appeal was received by the Court on 26 May 2021.

The Complainant was employed as a lorry driver. He resigned his employment on 11 January 2019. He did not submit his complaints to the Workplace Relations Commission until 22 December 2019.

He alleges he suffered ongoing psychiatric injury as a result of his employment conditions and this prevented him from referring his complaints within the applicable six months’ time limit. The Court heard evidence from the Complainant and two expert medical witnesses on his behalf: Dr Mary McGuire, Consultant Psychiatrist and Dr Muhammad Azam, General Practitioner. The Respondent called one witness: Dr Paul O’Connell, Consultant Forensic Psychiatrist.

The Complainant’s Evidence

The Complainant briefly outlined his employment history as a driver with the Respondent. He told the Court he resigned from his job on 11 January 2019 having first made contact with the proprietor of another haulage company who was well-known to him to enquire about the possibility of obtaining work with that company, Monaghan Transport.

The Complainant commenced working for Monaghan Transport some two weeks afterwards and remained employed there up until approximately 16 January 2020 when he obtained alternative employment with Sweeny Oil.

The Complainant told the Court that he suffered from fear and anxiety for a long period after he left his employment with the Respondent and this caused him to self-isolate and refrain from social engagement.

He said the job he took with Monaghan Transport suited him at the time because it didn’t require him to mix with other people and allowed him to continue earning and pay his mortgage and other living expenses.

He said he had been prescribed medication by his GP and that he gradually began to feel better. He said he was crippled with fear of the Respondent up until about December 2019. He said that at some point in or around this time he met a member of An Garda S?och?na who advised him to compile a diary, which he did. His desire to obtain justice, he said, for the mistreatment he believes was visited on him by the Respondent eventually allowed him to overcome this fear to the point where he was able to instruct his Solicitors to initiate the within proceedings.

Under cross-examination, the Complainant confirmed that he had felt much better following his change of job in January 2019 although he continued to experience anxiety and depression.

Nevertheless, he confirmed that he worked for Monaghan Transport for about a year without any performance or disciplinary issues.

He said he changed jobs again in January 2020 because the Monaghan Transport job required him to get up at 3.30 am each day and the pay was not great and he needed a better income to cover his living costs.

Counsel for the Respondent referred him to Dr Azam’s observation in his written report to the effect that the Complainant had returned to normal approximately six or eight months after he had left his employment with the Respondent. Counsel asked the Complainant why he had not referred his complaints to the Workplace Relations Commission at that point in time.

He replied that he was still experiencing significant fear in relation to the Respondent. Counsel then put it to him that neither of his medical reports made any mention of fear. The Complainant replied that, in his view, anxiety and fear are the same thing.

When asked by a Member of the Court about the responsible nature of the work he was performing as a driver of a large articulated truck, the Complainant replied that although he was experiencing crippling fear and anxiety at the time this did not interfere, in his opinion, with his capacity to do his job.

Evidence of Dr Mary McGuire

The witness outlined her qualifications and experience as a Consultant Psychiatrist. She told the Court that she conducted an assessment of the Complainant’s mental health on 24 June 2021 and set out her findings in a written report dated 28 June 2021.

The witness told the Court that as of the date of her assessment of him, she found the Complainant to be “euthymic during assessment and his cognitive state was normal”. She said that he had outlined in some detail to her the history of his employment with the Respondent and the incidents he experienced at that time that he believed had impacted negatively on his confidence and mental health.

The witness recounted in some detail the range of symptoms the Complainant reported to her that he had experienced. In the witness’s professional opinion, she said, the Complainant had suffered severe anxiety disorder that caused him to develop avoidance technique. She also said that he remained anxious during the period of his employment with Monaghan Transport until he engaged with counselling and an energy healing system in which he had confidence. I

n the witness’s professional opinion, the Complainant had continued to struggle with his mental health for some time after he left his employment with the Respondent and was unfit during this period to do anything about his situation although he continued to function within restricted circumstances as he knew he had to meet his mortgage repayments. According to the witness, the Complainant was unable to initiate a complaint to the Workplace Relations Commission because he was just about able to function and focus on his job while continuing to isolate from other people.

In cross-examination, Counsel for the Respondent put it to the witness that she had assessed the Complainant some eighteen months after Dr Azam had assessed him and the latter had reported that the Complainant had returned to normal some six to eight months after leaving the Respondent’s employment.

The witness replied that, in her opinion, the Complainant was operating within very restricted boundaries at that time and was unable to make decisions. Counsel put it to the witness that the Complainant had been able to make the decision to take up alternative employment.

Re-directed by Counsel for the Complainant, the witness said that – in her opinion - the Complainant’s problems with avoidance had continued for about a year after he left his employment with the Respondent during which time he was unable to make any decision about pursuing litigation against the Respondent. She confirmed that he was sufficiently recovered to do so by the time he presented to her for assessment in June 2021.

Evidence of Dr Muhammad Azam

The witness outlined his qualifications and experience as a General Practitioner in Longford. He told the Court that he has been the Complainant’s GP since April 2018 and that the Complainant had presented to him at that time complaining about his work environment with the Respondent company, the volume of work he was being asked to complete, the fact that a tracking device had been placed on his vehicle and was not permitted to take his statutory breaks and that he was both mentally and physically exhausted.

The witness said he prescribed Benzodiazepines (Lexotan and Xanax). He said that he had stated in his PIAB Report completed on 8 January 2020, he had noted that the Complainant had gradually started feeling better after he left his job with the Respondent in January 2019 and it had taken him six to eight months to return to normal and that the Complainant had reported to him that his family life and mood generally had improved.

Evidence of Dr Paul O’Connell

The witness outlined his qualifications and experience as a Consultant Forensic Psychiatrist.

He told the Court that he had interviewed and assessed the Complainant in November 2021 and that the Complainant had presented in an elated state during the interview.

He also said that the Complainant told him he had experienced anxiety following alleged incidents in his workplace. In the witness’s opinion, the Complainant experienced adjustment anxiety disorder would have re-adjusted within six months of having left his former employment. The witness said his assessment was, in this regard, consistent with that of Dr Azam.

He also said that he disagreed with Dr McGuire’s assessment of the Complainant in the light of the fact that the Complainant had been able to consider securing alternative employment before leaving his job with the Respondent and had been able to hold down successive jobs since then. According to the witness, the Complainant evidenced an ability to think in a strategic manner about his own best interests.

The witness said that the high level of skill and attention to detail required in order to be able to drive a HGV was an example of this. The witness told the Court that the Complainant had not made any reference during their interview to the experience of fear of the Respondent he had articulated in the course of his evidence to the Court during the within appeal.

Counsel for the Complainant questioned the witness about his professional experience as a forensic psychiatrist.

The witness said that the skills required of a practitioner of forensic psychiatry are the same as those required of a general psychiatrist but they are applied in different environments.

He confirmed that he has a medical practice in addition to providing services to people within the civil and criminal justice systems. In response to questions from Counsel for the Complainant, the witness said that he had found the Complainant very difficult to pin down at interview and that his thinking had been ‘bizarre’. He said that, in his view, that the Complainant had not suffered PTSD and that Dr McGuire’s assessment that he had restricted functioning for an extended period was, therefore, incorrect, in his opinion.

He said the outstanding issue related to the Complainant’s other mental health issues. He opined that the word ‘fear’ as used by the Complainant in his evidence to the Court probably has some idiosyncratic meaning for the Complainant.

When re-directed by Counsel for the Respondent, the witness confirmed that, in his professional opinion, there had been no reason of a medical nature that prevented the Complainant from referring his complaint to the Workplace Relations Commission within time.

Submission on behalf of the Complainant

Mr Murray BL submitted that the Court in considering that the test for reasonable cause inCementation Skanskahad set a relatively low threshold and that his client had met that threshold in so far as his evidence before the Court had demonstrated that he had been unable to refer his complaint under the Act to the Workplace Relations Commission because of his deep-seated fear of the Respondent arising from his experience of having been bullied and harassed while in the Respondent’s employment.

Counsel categorically stated that his submission was not that the delay arose from the state of the Complainant’s mental health at the time. Finally, Counsel submitted that the facts of the within appeal could be distinguished from those ofDepartment of Foreign Affairs v Higgins(UD/19/113) andHewlitt-Packard Ireland Limited v Zajaczkowski(WTC/18/19) (both referred to in the Respondent’s submissions) as there had no supporting medical evidence proffered in those cases.

Submission on behalf of the Respondent

Ms Guinness BL submitted that there is no reference in ether Dr McGuire or Dr Azam’s report to the ‘fear of facing his aggressor’ articulated by the Complainant in the course of his evidence to the Court.

She further submitted that Dr Azam had been the Complainant’s GP for some four years and he had recorded in his assessment that the Complainant had returned to his normal self between six and eight months after leaving the Respondent’s employment. In relation to Dr McGuire’s assessment, Counsel submitted that it contained a fundamental error in so far as Dr McGuire had recorded that the Complainant had been unable to make any decision during the twelve-month period after the termination of his employment with the Respondent.

In Counsel’s submission, the witness – by his own evidence – had made a number of very cogent decisions in that time-frame including to leave his job with the Respondent but not without first reaching out to a prospective alternative employer to secure a job with it.

The Law

Section 41(8) of the Workplace Relations Act 2015 (‘the 2015 Act’) provides:

“(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.

This Court, commencing with its determination inCementation Skanska v CarrollDWT 38/2003, has given detailed consideration to the meaning of ‘reasonable cause’ as used in statutory provisions analogous to section 41(8) of the 2015 Act. It was 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 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.”

Discussion and Decision

At the outset, it must be noted that the Court is somewhat taken aback by the attempt on the part of Counsel for the Complainant to amend the basis on which he is seeking an extension of time. As noted in the summary of the representatives’ closing submissions above, Counsel submitted that his client was prevented from referring his complaint to the WRC due to his deep-seated fear of confronting his aggressor rather than because of his ongoing mental health issues which is the case that had been advanced on the Complainant’s behalf at first instance and indeed in Counsel’s advance written submissions to the Court where he states, for example:

“As can be seen from the Complaint Form, the reason for the complaint being made outside the 6 month (sic) period but within the 12 month period was the Claimant was unable to bring the claim within default 6 month (sic) following termination of his employment as he was suffering from and receiving treatment for depression, anxiety and stress induced by working conditions of Mr Ireland’s employment with Corrib Oil …”

In determining the instant appeal, therefore, the Court has given very careful consideration to the Complainant’s submissions in relation to the state of his mental health following the cessation of his employment with the Respondent (and has disregarded Counsel’s novel submission in relation to the Complainant’s fear of confronting his aggressor).

In doing so, the Court has had the benefit of the written reports of three medical experts and of hearing, first hand, those medical experts’ sworn evidence. Of the three reports produced in evidence, it appears to the Court that that of Dr O’Connell is the most comprehensive and considered.

The Court was impressed by the honest and clear evidence given by Dr Azam (the Complainant’s GP for over four years), the thrust of which was that the Complainant had suffered from anxiety and exhaustion as a result of his feeling of having been the target of bullying and humiliating behaviour while in the Respondent’s employment but that he had returned to normal within six to eight months of changing employment. Dr O’Connell’s assessment and evidence appears to be consistent with the opinion expressed by Dr Azam. Dr O’Connell’s opinion is that the “chronological narrative of symptoms [described to him by the Complainant] occurring in a particular context and then resolving after leaving the context suggests a depressive or anxiety adjustment reaction”.

In Dr O’Connell’s opinion, that adjustment reaction experienced by the Complainant would have resolved quickly – and most probably within six months – once he was no longer exposed to the precipitating stressors.

The relevant facts in this case are that the Complainant terminated his employment with the Respondent on 11 January 2019, having first secured alternative employment; he delayed referring his complaint under the Act to the Workplace Relations Commission until 22 December 2019, some eleven and half months after the date he terminated his employment.

The Court’s jurisprudence, as recounted earlier, is that such a lengthy delay as occurred in this case requires very ‘cogent reasons’ that explain and justify it. Having carefully considered the evidence of Dr Azam and Dr O’Connell, the Court finds that no such cogent reasons have been established by the Complainant as in Dr O’Connell’s opinion, the Complainant’s brief depressive adjustment would have resolved within six months of his having changed jobs and in Dr Azam’s opinion the Complainant had returned to normal within six to eight months of leaving the Respondent’s employment.

The Court, therefore, finds that no cogent reasons have been advanced that explain and justify the Complainant’s delay of approximately eleven and half months to refer his complaint. The Court is fortified in its conclusions by the Complainant’s own evidence in relation to his decision to obtain alternative employment before resigning from the Respondent and his evidence that he worked continuously thereafter driving heavy goods vehicles without issue or incident.

The appeal, therefore, fails.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
CO'R	______________________
24 August 2022	Deputy Chairman