Complainant

Respondent

Parties

John  Martin

PJ Personnel Limited

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr. Gerry McGreevy, Brady McGreevy Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00043296-001

29/03/2021

The Complainant commenced employment with the Respondent on 6th June 2017. At all times that Complainant’s role was described as “Ground Worker”. On 20th December 2019, the Complainant’s employment was terminated.

On 29th March 2021, the Complainant lodged the present complaint with the Commission. Herein, he alleged that his employment was in fact terminated by reason of redundancy within the meaning of the Redundancy Payments Acts, and consequently he was entitled to the statutory redundancy payment. In denying the claim, the Respondent submitted that the Complainant’s employment had not been terminated by reason of redundancy and he had been offered alternative work elsewhere.

A hearing in relation to this matter was convened and finalised on 6th August 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset of the hearing, the Respondent’s representative submitted that the present complaint was referred outside of the statutory timeframe and consequently, I did not have jurisdiction to hear the complaint. This matter will be considered as a preliminary issue prior to the substantive complaint.

The Complainant submitted that he instructed his former representatives to pursue the present complaint on 2nd May 2020. In December of that year, the Complainant contacted his former representatives to enquire as to how the complaint was progressing. At that point the Complainant was informed that his former representatives had all the information they required and were going to lodge the present complaint.

On 4th March 2021, the Complainant again contacted his former representatives to enquire as to the status of the complaint. At this point the Complainant was informed that the complaint had not been referred to the Commission and that it was statute barred at that point. Following this conversation, the Complainant submitted the present complaint himself.

In summary the Complainant submitted that he had intended to refer the present complaint within the prescribed time-frame, but that his instructions were not followed in that regard. He submitted that the delay was not as a result of his error and he should not be punished for the same.

By response, the Respondent submitted that the Complainant had not demonstrated “reasonable cause” to extend the relevant time period for referring the complaint and consequently that same should be deemed statute barred.

In particular, the Respondent submitted that it is well-established that the failure of a representative to pursue a complaint is not a sufficient basis on which to establish reasonable cause for the purpose of the Act. 

Section 24 of the Act (as amended) provides that,

“….an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment

a)      the payment has been agreed and paid, or

b)      the employee has made a claim for the payment by notice in writing given to the employer, or

c)       a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.”

Section 24(2A) of Act provides that,

“Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.”

The established test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. 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 the present case, I note that the Complainant has relied upon his former representative apparent failure to pursue this complaint on his instructions as grounding his application as the “reasonable cause” for the purposes of Section 24(2A).

In the matter of Medical & Industrial Pipeline Systems -v- David Dunne, MND191, the Labour Court held that,

“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. Having considered the submissions advanced in the course of the appeal, the Court cannot accept that an oversight on the part of the Trade Union representative is sufficient to explain the delay.”

Having regard to the foregoing, I find that the apparent failure of the Complainant’s former representatives to progress the complaint in good time is not sufficient grounds upon which to establish “reasonable cause” to extend the relevant period for the purposes of the Act.

As no dismissal occurred within the relevant period for the purposes of the Act, I find that the complaint is not well-founded and the Complainant’s appeal fails.

Redundancy, Time Limits, Reasonable Cause