ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033252

Parties:

	Complainant	Respondent
Anonymised Parties	A van Driver	A Delivery Company

Representatives

Self

Did not attend

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00044044-001	18/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00044044-002	18/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00044044-003	18/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00044044-004	18/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00044044-005	18/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00044044-006	18/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00044044-007	18/04/2021
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00044044-008	18/04/2021

Date of Adjudication Hearing: 17/05/2022

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 – 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.

There was no appearance by, or on behalf the Respondent. A letter informing the parties of the arrangements for an adjudication hearing scheduled on 17th May 2022 was issued to the parties on 6th April 2022.

At the adjudication hearing the Complainant was advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. However, the complaints listed above were heard in conjunction with a dispute referred by the Complainant and considered under a separate ADJ reference number. The dispute was referred under the Industrial Relations Act, 1969 and, therefore, the parties in the associated recommendation were anonymised. In light of the significant overlap between these cases, I have made the decision to anonymise the parties to this complaint.

The Complainant was also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. The Complainant was sworn in.

Background:

The Complainant was employed by the Respondent from 18th May 2020 until 8th June 2020 when his employment transferred to a new employer under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.

The Complainant referred his claims to the Director General of the WRC on 18th April 2021.

The Respondent did not attend the adjudication hearing.

Preliminary matter: time limit

Summary of Complainant’s Case:

The Complainant submitted that during his employment with the Respondent he was concerned about his job security, and he was afraid that he would be fired if he made a complaint.

Summary of Respondent’s Case:

There was no appearance by, or on behalf of, the Respondent at the adjudication hearing.

Findings and Conclusions:

The Complainant commenced his employment with the Respondent on or around 18th May 2020.

The Complainant referred the above complaints to the Director General of the WRC on 18th April 2020. While the Complainant does not offer specific dates of the alleged contraventions, it is clear that they relate to the Complainant’s period of employment with the Respondent, i.e. from 18th May 2020 until his employment transferred to a new employer under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 on 8th June 2020.

Section 41 of the Workplace Relations Act 2015 which provides that:

“(6) Subject to subsection (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 in subsection (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.”

Section 77(5) of the Employment Equality Acts provides:-

“(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.”

The established test for establishing such reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 where 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.”

Therefore, in order to achieve an extension to the time limit the Complainant must identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the delay.

In the present case the Complainant stated that he was concerned about his job security, and that he was afraid that he would be fired if he made a complaint. While I appreciate the Complainant’s concerns, I note that the Respondent ceased to be the Complainant’s employer on 8th June 2020. Even if I accept the Complainant’s assertion that he was afraid to lose his job with the Respondent, it does not explain or excuse the delay after 8th June 2020.

I have concluded that the Complainant has not shown reasonable cause to empower me to extend the applicable time limits.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the complaints CA-00044044-001, CA-00044044-002, CA-00044044-003, CA-00044044-004, CA-00044044-005, CA-00044044-007, CA-00044044-008 have not been referred to the Director General of the WRC within the time limits provided for in the Act. Accordingly, I do not have jurisdiction to inquire into the complaints.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I find that the complaint CA-00044044-006 has not been referred to the Director General of the WRC within the time limits provided for in the Act. Accordingly, I do not have jurisdiction to inquire into the complaint.

Dated: 15th July 2022

Workplace Relations Commission Adjudication Officer: Ewa Sobanska

Key Words:

Time limit