FULL RECOMMENDATION
PARTIES : BUS EIREANN DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00031819, CA-00042270-01 This is an appeal by Mr Paul McDonnell (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00031819/CA-00042270-001, dated 25 August 2021) under the Payment of Wages Act 1991 (‘the Act’). The Complainant’s Notice of Appeal was received on 5 October 2021. The Court heard the appeal in a virtual courtroom on 4 January 2022. Preliminary Issue The substantive issue in this case relates to an alleged unlawful deduction from the Complainant’s wages on 23 July 2020. The Complainant did not refer his complaint under the Act until 2 February 2021, by which date the period provided for in section 41(6) of the Workplace Relations Act 2015 had expired. For this reason, the Adjudication Officer held that the complaint was not well-founded. The Complainant is seeking to extend time within which to bring his claim. He submits that there was ‘reasonable cause’ for the delay in referring his complaint at first instance in circumstances where discussions were ongoing between his union and Bus Éireann (‘the Respondent’) regarding the amount of annual leave he had availed himself of, over a number of years. The Law Section 41(8) of the Workplace Relations Act 2015 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 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.” Reasonable Cause This Court has considered in some detail in many of its previous Determinations the correct meaning to be ascribed to the term ‘reasonable cause’ as the test for the justification for a delay on the part of a Complainant in referring complaints at first instance under employment legislation. InCementation Skanska (formerly Kvaerner Cementation Limited) v CarrollDWT0425, the Court stated: “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 his or her 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 context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material 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.” InSalesforce.com v LeechEDA1615 the Court – having referred to the Determination inCementation Skanska– stated: “It is 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.” Discussion and Decision The Complainant submits that it would have been premature to refer his complaint under the Act while an internal negotiation process was ongoing in relation to the issues that gave rise to the deduction of from his wages on 23 July 2020. Having considered the Complainant’s submission in this regard, the Court finds that the explanation proffered by the Complainant for the delay in referring his complaint under the Act does not afford an excuse for the delay. Notwithstanding the ongoing industrial relations process that the Parties were engaged in, it would have been prudent of the Complaint to refer his complaint when it had become apparent that the internal process was unlikely to conclude within the six-month limitation period. Had the process subsequently yielded a satisfactory outcome, the Complainant could have withdrawn his complaint under the Act. The Court so determines.
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