UDD2271

1.Appeal of Adjudication Officer Decision No(s) ADJ-00033443 CA-00044044-001.


BACKGROUND:

2.The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 6 April 2020 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 16 November 2022. The following is the Determination of the Court:-


DETERMINATION:

This is an appeal by Mr Eddie Lyons against the decision of an Adjudicator Officer (ADJ-00033443 - dated 03 March 2022) under the Unfair Dismissals Act 1977 (“the Act”). The Adjudication Officer held that the complaint was not well founded. A Notice of Appeal was received by the Labour Court on 6 April 2022 and a hearing of the Court held on 16 November 2022.

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Lyons is referred to as “the Complainant” and Servecentric Ltd is referred to as “the Respondent”.


Preliminary Issues

Two preliminary issues were raised with the Court addressing its jurisdiction to hear the appeal:- (i) an application for an extension of time and (ii) the status of the termination agreement entered into between the parties.


Application for an Extension of Time

It is accepted that on the 15 May 2020 the Complainant’s role as Chief Executive Officer (CEO) was terminated by reason of redundancy. A claim against the Respondent was lodged with the Workplace Relations Commission (WRC) on 11 May 2021, which is nearly six months outside the time limit allowed under the Act. The Act allows a complaint to be submitted within 12 months of the dismissal where reasonable cause exists.Mr Alistair Purdy SC, on behalf of the Complainant, submits that there is reasonable cause to grant an extension of time on the facts of this case.

When the Complainant’s employment was terminated in May 2020, he understood that the termination was by virtue of the role of CEO being redundant. The Complainant did not dispute the fact of redundancy at the time. The dismissal was not in dispute between the dismissal date on 15 May 2020 and 30 April 2021. The dispute only arose on the 1 May 2021 when the Complainant became aware that the role of CEO had been filled by the Respondent, which called into question the validity of his dismissal. Had the Complainant known that no valid redundancy existed, he would have lodged a complaint sooner. The Complainant lodged a complaint immediately once he became aware of the situation. It is accepted that this occurred 11 months after his termination.

Mr Purdy acknowledged that ignorance of the law does not excuse a delay in lodging an appeal but submits that where knowledge of the facts is the operative reason for a delay an application seeking an extension should be granted.

Mr Mark O’Connell B.L., on behalf of the Respondent, submits that the Complainant’s employment was terminated by reason of a legitimate redundancy in May 2020. At the time he acknowledged that his role had become redundant and did not raise any issue with his termination. He never challenged the process or appealed the decision. He had six months within which to lodge a claim for relief under the Act but failed to do so. The established case law requires there to be a direct relationship between the “reasonable cause” for the delay and the failure to comply with the statutory time limit. Given the inordinate nature of the delay, the Complainant is under a heavier onus to prove reasonable cause. In this case not only is the delay inordinate, but the Complainant does not have an arguable case to support an application for an extension of time.

The Respondent rejects the Complainant’s assertion that his employment was not terminated by virtue of a legitimate redundancy. The Respondent is entitled to regulate its own affairs and commercial conditions had changed significantly almost 12 months after the termination of the Complainant’s employment. The position of Chief Executive Officer which was filled in May 2021 was a wholly different from the role vacated by the Complainant in May 2020. There was no causal connection between the reason proffered for the delay and the Complainant’s failure to present his claim in time. An application for relief was made to the WRC just three days before the expiration of the extended deadline.


RELEVANT LAW:

Section 8 of the Unfair Dismissals Act addresses the determination of claims for unfair dismissal. Section 8(2) sets out as follows:

• (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.

DELIBERATION AND FINDINGS:

A failure on the part of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim.

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.

Both representatives referred the Court to the established test for deciding if an extension should be granted for “reasonable cause” which was set out by the Labour Court inCementation Skanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338in the following terms: -

• “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.”

• “The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

In the within appeal a complaint was lodged with the WRC on 11 May 2021, which is three days short of the expiration of the maximum extendable period under the Act.As set out inCementation Skanksaa short delay may require only a slight explanation whereas a long delay may require more cogent reasons to explain why the Complainant was prevented from lodging a complaint within the six-month time limit set out at s. 8(2)(a) of the Act.

It was submitted that an extension should be granted in this case because a lack of knowledge relating to new facts which came to light is the operative reason for the delay. The Court cannot accept that assertion on the facts of this case.

The Court was told that the operative reason for the delay wasthe appointment of an individual to the role of CEO some eleven and a half months after the termination of the Complainant’s employment from that role. It is accepted that there was no dispute for eleven and a half months from the date of his dismissal on 15 May 2020 up until 1 May 2021. The Complainant did not query or question his dismissal in the intervening period as he did not deem the termination of his employment contract to be unfair. It was only after the Complainant became aware that the role of CEO was filled by the Respondent on 1 May 2021, that he retrospectively questioned the validity of his dismissal by reason of redundancy.

In the Court’s view, it is not necessary to decide on the legitimacy or otherwise of the redundancy in 2020 in order to address the preliminary points raised regarding time limits. The fact that a new CEO was appointed some eleven and a half months later may explain the length of the delay in lodging a complaint, however, it does not provide a justifiable excuse for that delay. In short, the Court does not find that the appointment of a new CEO eleven and a half months after the Complainant’s dismissalpreventedhim lodging a complaint of unfair dismissal within the six-month timeframe set down in the Act.

In the Court’s judgment no valid explanation to properly account for the delay has been furnished that offers an excuse or explains that delay. In all the circumstances, the Court finds that the Complainant does not meet the threshold outlined inCementation Skanksawhereby the statutory timeframe within which he is permitted to refer his complaint under the Act can be enlarged for reasonable cause.


DETERMINATION:

The Court finds that the reason provided by the Complainant is not sufficient to demonstrate reasonable cause for the delay in filing a complaint with the WRC, as required under Section 8(2)(b) of the Unfair Dismissals Act.

The Court finds that the within claim was out of time when it was presented to the WRC on 11 May 2021 and is accordingly statute barred. The Court determines that it has no jurisdiction to hear the substantive matter.

In these circumstances, it is not necessary for the Court to determine the second preliminary matter relating to the status of the termination agreement entered into between the parties.

The appeal is rejected, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
12 December 2022	Deputy Chairman