FULL RECOMMENDATION
PARTIES : GL ENTERTAINMENT DISTRIBUTION DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00021993 The Adjudication Officer, ‘AO’, found that the complaint had been lodged outside of the 6 months from the alleged breach, as required under s. 41 of the Workplace Relations Act and that reasonable cause for the delay had not been established, as per s.41(8) of that Act. The Complainant appealed that decision to this Court. Summary of Complainant arguments. The rule is unclear and the Respondent understood the 6 months to apply from the last act, not including the day of the act itself. In accordance with the European Convention on Human Rights, rules governing time limits should not prevent litigants from using an available remedy, see Miragell Escalano and Others v. Spain and Zvolsky and Zvolska v the Czech Republic. Each case must be assessed in the light of the special features of the proceedings, see Kursun v. Turkey. The Courts must avoid excessive formalism, see Hasan Tunc and Others v. Turkey. Where access to a court is restricted by law or practice, the Court is required to examine if the restriction affects the substance of the right, see Ashingdane v the United Kingdom. The rules should not form a barrier to a litigant having their case determined on its merits, see Zubac v. Croatia. Where inaccurate or incomplete information regarding time limits has been provided, the courts should take sufficient account of the circumstances of the case and not apply the rules, see Clavien v. Switzerland and Gajtani v. Switzerland. With regard to proportionality, see Nait-Liman v. Switzerland. The statute of limitation as a 6 month period seems to be too strict, having regard to a European trend. It is disproportional to the protection of female rights in comparison to EU legislation. In Poland, for example, the limitation is 3 years. Therefore, the Court can accept the claim if it is just and equitable to do so. The complaints, that the Complainant did not get her breaks and overtime, were not pursued at the time as she hoped that there would be a resolution with the company. The lack of breaks was notified to the owner, who ignored it, and she worked overtime, for which she was not compensated. The Complainant is not a lawyer and English is not her first language. When she calculated the 6 months, she did not calculate the first day. The Complainant was stressed and suffering from medical issues due to her treatment by the Respondent. Summary of Respondent arguments. The real reason for the delay was that the Complainant waited until the last day that she believed her appeal to be in time. It is a well established legal principle that ignorance of the law is not an excuse. The Complainant has not provided any medical evidence to support her claim that she was suffering from medical issues. The Complainant was sufficiently well to write a comprehensive account of her grievances and to send it to the Respondent on 13 January 2019. She was clearly in a position to submit any complaint to the WRC at that time. The Complainant has not produced any argument to show reasonable cause for the delay. The applicable law Workplace Relations Act 2015. 41. (6) Subject tosubsection (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 insubsection (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. Deliberation The issue arising in this appeal is whether reasonable cause has been shown for an extension of time. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in 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. In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court inMinister for Finance v CPSU & Ors[2007] 18 ELR 36. The test formulated inCementationSkanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello Costello J. (as he then was) stated as follows: -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. It 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 the passage quoted above, 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. The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit and that the test for reasonable cause has not been met. The Court notes that no medical evidence was provided to support the reason offered for delay over the entire 6 month period.. The Court notes also that the Complainant was sufficiently well as to enable her to set out her complaints to her former employer in January 2019, at which point she could have lodged her complaint. The Court does not accept that a miscalculation of the time elapsed, as appears to have occurred, can offer reasonable cause for a failure to meet the clear intention of the legislation, quoted above, that complaints be submitted within a six month period. The Court notes the Complainant’s lack of legal training but, as noted by the representative of the Respondent, it is well established that ignorance of the law is not an excuse. The Complainant was well able to speak for herself in the hearing despite the fact that English is not her first language and the Court sees no reason why that argument should be a factor in its consideration, given the ability of the Complainant to articulate her arguments with such commendable authority. The Court can offer no observations regarding the time limits applied in other jurisdictions. Determination. The Decision of the Adjudicating Officer is upheld.
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