ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00031693
Parties:
| Complainant | Respondent |
Parties | Tony Conry | Vendor Finance Ireland Limited |
Representatives | The claimant represented himself | Carmel Murphy HR Solutions |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00042204-001 | 28/01/2021 |
Date of Adjudication Hearing: 28/04/2022
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The claimant was employed as a Commercial Manager with the respondent from the 17th.July 2017 until the 28th.July 2020 when he was made redundant. The claimant complained that he was unfairly dismissed and contended that there was “a lack of transparency in respect of the selection criteria for termination with no offer of alternative roles within the business”. The respondent contended the complaint was out of time- it was submitted that the complaint was not received by the WRC until the 28th.Jan. 2021 and consequently was one day out of time when it was submitted. It was advanced that thereafter no reasonable cause was presented by the claimant for the delay in submitting the complaint. The respondent invoked the provisions of the following authorities in support of their claim that the complaint was out of time: Cementation Skansa v Carroll DWT0425 Galway & Roscommon ETB v Josephine Kenny UDD1624 Pat the Baker v Conor Brennan TUD1813 Tesco Express & Khan The respondent denied the complaint of unfair dismissal and contended that the redundancy process undertaken in mid-2020 was necessary for the survival of the business and its financial viability due to unprecedented trading conditions on foot of Covid and further submitted that the process was conducted in a proper manner with due process and consultation. |
Preliminary Matter of time limits.
The claimant’s employment ended on the 28th.July 2020 and his complaint was received by the WRC on the 28th.January 2021.
In his submission and in the course of his direct evidence the claimant stated that it was his understanding that the complaint was in time. He advised that his father was diagnosed with leukaemia in July 2020 and was given 6-9 months to live – his father passed away on the 18th.May 2021.The claimant’s father was treated in hospital in Galway and became very ill on one of his visits on the 25th.Jan. 2021.The claimant was unable to leave the hospital – his father was seriously ill for 48 hours but stabilised eventually. The claimant stated that there were very severe restrictions in the hospital at the time arising from Covid and he was obliged to sign in and out at all times. The claimant stated that the family stayed in Galway during this period and that he had “ no access to complete my unfair dismissal claim until late on the evening of the 28th.January 2021 which I understood to be within the time frame”. The claimant said he thought long and hard about making the complaint – he said it was a difficult decision to make and he was not fully aware of the circumstances of the other workers. He said he decided to stand up for himself at the last minute. He agonised over whether or not he should do it and believed he was within the time limit.
The respondent submitted that no reasonable cause had been advanced by the claimant for the delay in making the complaint and it was submitted that he had been given numerous opportunities to do so. It was advanced that it was a matter for the claimant to show that there were reasons which both explained the delay and afford an excuse for the delay as had been determined in DWT0425 Cementation Skanska v Carroll. It was submitted that the decision in Galway Roscommon v Josephine Kenny that the miscalculation with respect to a day late did not constitute an exceptional circumstance. This same principle was confirmed by the Court in Pat the Baker v Connor Brennan where a miscalculation of the deadline date arose – in this case the Court indicated that the legal principle “ignoranti juris non excusat” applied. It was submitted that in UDD1965, the Court took account of time frames and deduced that despite the illness of family members and the illness of the claimant himself, the claimant was not prevented from seeking appropriate advice and submitting his complaint within the required time limit.
Findings and Conclusions:
I have reviewed the evidence presented and the submissions of both parties. While I fully acknowledge the distress arising for the claimant and his family during the acute stage of his father’s illness in January 2021, the claimant has advanced no compelling evidence or explanation for failing to lodge the complaint during the 5+ months following the termination of his employment and prior to the acute illness of his father in January 2021. In light of this and having regard to the authorities relied upon by the respondent I find the claimant has failed to meet the test set out by the Labour Court in Cementation Skansa v Carroll DWT 0425 and accordingly I deem the complaint to be out of time. |
Dated: 27-06-2022
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Key Words:
Out of time; Reasonable Cause |