FULL RECOMMENDATION
PARTIES : SHANNON TRANSPORT & WAREHOUSE COMPANY T/A STL LOGISTICS DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00028639. A Notice of Appeal was received by the Labour Court on 27 July 2021 and a remote hearing conducted on 18 January 2022. For ease of reference the parties are referred to in this Determination using the same designation as they had at first instance. Hence, Mr Nigel Miller is referred to as “the Complainant” and Shannon Transport & Warehouse Company t/a STL Logistics is referred to as “the Respondent”. PRELIMINARY MATTER – APPLICATION FOR EXTENSION OF TIME: The appeal before the Court relates to an Adjudication Officer’s decision under the Unfair Dismissals Act that records the date of lodgement of the claim to the Workplace Relations Commission (WRC) as 08 May 2020. The Court invited the parties to comment on the Court’s jurisdiction, under Section 8 of the Act, to hear a claim that was not initiated in writing within a period of 6 months from the date of the Complainant’s dismissal on 15 October 2019, and which on the face it, appeared to be out of time. Both parties acknowledged that the claim was out of time. SIPTU, on behalf of the Complainant, submitted that the question of the lodgement date of the claim had arisen at the WRC hearing, although it was not decided upon in that forum. SIPTU submitted that it wished to make an application for an extension of time. Ibec, on behalf of the Respondent, acknowledged that the matter had arisen for discussion at the WRC hearing and did not object to SIPTU’s request to lodge an application for an extension of time. Having heard from the parties, the Court adjourned briefly to consider whether to accede to SIPTU’s request to make an application for an extension of time. It decided to grant that request and provide the parties with an opportunity to adjourn for a period to consider their submissions. Both parties confirmed to the Court that they were happy to proceed to have the application heard by the Court on the day of the hearing. SUBMISSION ON BEHALF OF THE COMPLAINANT: The worker is an agency worker, whose employment ended on 15 October 2019. An original claim form was lodged to the Workplace Relations Commission (WRC) on the 14 January 2020 within the six-month time limit specified in the Act. That claim form cited Team Obair, an employment agency, as the respondent. SIPTU submitted that the reason for citing Team Obair as the respondentwas because the WRC appeal form specified that details relating to the employment agency be provided, and that details relating to the Hirer/User would be sought at a later point. SIPTU did not hear back in relation to this matter. SIPTU followed up with the WRC on 05 May 2020 to enquire if they should provide additional data in relation to STL Logistics as a respondent. They were advised to include such information in the submission for the claim of constructive dismissal. SIPTU provided details relating to STL Logistics as a respondent in the submission lodged with the WRC on 8 May 2020. The WRC advised SIPTU that it was not possible to have two named respondents on the same form. The WRC confirmed they would process the second complaint on that same date, 8 May 2020. In subsequent correspondence with the WRC, on 02 June 2020 and 24 June 2020, SIPTU sought that the two cases be heard on the same date, and that the original claim date of 14 January 2020, be recorded as the lodgement date for both claims. SIPTU told the Court that at the WRC hearing it again requested that the claim date of 14 January 2020, be recorded as the lodgement date for both claims. It acknowledges that the lodgement date recorded on the Adjudicator Officer’s decision that issued following the hearing is recorded as 8 May 2020. SIPTU confirmed to the Court that it did not seek a correcting order in relation to that date. SIPTU submits that the circumstances outlined explain the delay in lodging the claim within the six-month timeframe referenced in the Act and meets the test for “Reasonable cause” required for an extension of the six-month time limit. It requests that the Court treat 14 January 2020 as the correct lodgement date for the claim. SUBMISSION ON BEHALF OF THE RESPONDENT: The Complainants termination date was 15 October 2019, which meant that the last date for receipt of a complaint by the WRC was 14 April 2020. On that basis the complaint is out of time. SIPTU seeks to rely on assurances from the WRC that details of the hirer could be provided at a later date. The WRC provides an administrative function and not legal advice. Ibec submits that it fails to see how any assurances provided by the WRC can be construed that the name of a respondent could be changed at a later date. The claim to the WRC could have related to any employment matter, not just an unfair dismissal claim. Relying on conversations with WRC administration cannot amount to reasonable cause. The matter was raised at the hearing at the WRC, and it was accepted as an administrative issue at that time. Ibec submits that the default option was to lodge two forms. No explanation has been provided as to why information about the respondent was not provided to the WRC in February, March, or April within the six-month time limit. It is accepted that a ‘reasonable cause’ test is less onerous than one relating to ‘exceptional circumstances. However, SIPTU’s submission does not explain the delay or excuse the delay. Even if it is accepted that the circumstance outlined explains the delay, it does not excuse that delay. The Complainant was represented throughout the process. The delay and lack of certainty in progressing proceeding had caused prejudice to the Respondent and Ibec submitted that the application for an extension of time should be dismissed. 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: The conventional approach to statutory time limits in employment rights cases is that the failure of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim. The Complainant’s employment terminated on 15 October 2019, and a claim against the Respondent in the within claim was lodged with the WRC on 08 May 2020, outside the six-month time limit allowed in Section 8(2)(a) of the Act. 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 test for “reasonable cause” was set out by this Court inCementation Skanska (Formerly Kvaerner Cementation) v Carroll DeterminationWTC0338. That case set the established test for deciding if an extension should be granted for reasonable cause, and 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. 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.” SIPTU submits that the circumstances that arose in this case giving rise to the delay meet the test of “reasonable cause”. SIPTU is seeking to rely on assurances that it says it received from the WRC, in relation to another appeal form citing a different respondent, to provide details of the respondent in the within claim at a later date. It contacted the WRC on 05 May 2020, outside the six-month time limit, to follow up and enquire about providing additional information in relation to the respondent in the within claim. No explanation was provided to the Court for the delay in waiting until May to follow up on this matter with the WRC. The Court concurs with the view that it is not the role of the administrative function of the WRC to provide legal advice and that it was open to the Complainant to lodge two appeals within time. The Court has consistently taken the approach that it is for the Applicant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case. DETERMINATION: Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission on 20 May 2020 and is accordingly statute barred. In these circumstances, the Court cannot proceed to hear the substantive matter. The Complainant’s appeal is rejected, and the Decision of the Adjudication Officer is varied accordingly. The Court so Determines.
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