ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00034542
Parties:
| Complainant | Respondent |
Parties | Emma Bourke | Boots Retail Ireland Limited Boots |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | In person | Cian Conboy |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045515-001 | 03/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045515-002 | 03/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00045515-003 | 03/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045515-004 | 03/08/2021 |
Date of Adjudication Hearing: 22/04/2022
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was employed by the Respondent as a Pharmacist. Employment commenced on 2nd June 2020 and ended on 13th August 2020. This complaint was received by the Workplace Relations Commission on 3rd August 2021. |
Preliminary Issue.
The Respondent submits that there is no discretion under the Act in any event to further extend the time limit past the initial 6-month period, unless "reasonable cause" is proven.
The Acts refer to "reasonable cause" as permitting an extension of the statutory time-limits. The tests applied by the Labour Court for extensions of time under the Organisation of Working Time Act have been well established. The respondent cites the case of Cementation Skanska v Carroll, DWT0338, where the Court articulated the test by stating:
"It is the Court's view that in considering if reasonable cause exists, it is for the Appellant 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 Appellant at the material time. The Appellant'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 Appellant 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 Appellant has a good arguable case."
The Court's explanation in Cementation Skanska, drew heavily from the High Court case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301, where Costello J held that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. Costello J stated:
"The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time/ merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".
The Complaint(s) in this case are quite clearly out of time by way of the Complainant having failed to lodge her complaint within the statutory six-month time limit. She has failed to establish reasonable cause as set out above. Thus, it is submitted that the WRC does not have the requisite jurisdiction to hear this claim.
The claim was submitted on 29 July 2021. The scope of this claim therefore is the six months, back to 30 January 2021. The Respondent submits that none of the within claims (x4) arise within this requisite period of cognisance and thus, must fail.
Summary of Complainant’s Case:
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Summary of Respondent’s Case:
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Findings and Conclusions:
The representative for the Respondent has quite correctly stated the law in relation to time limits: S 41. (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has beenpresented 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)Anadjudication officer mayentertainacomplaint ordispute 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. I have carefully considered this matter and note that the Complainant has stated that Revenue only indicated in June 2021 that it was in order for her to return the September net payment to the Respondent and any time limit runs from that date. I cannot agree with this assertion from the Complainant – section 41(6) of the Workplace Relations Act clearly states 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 ....... In the instant case the Complainant could have easily presented her complaint within 6 months and if necessary requested that the hearing of the complaint be deferred until the matter had been addressed by Revenue.
The complaints were not submitted within the permitted 6 months I am unable to accept that there is reasonable cause to extend the time limit. I therefore do not have jurisdiction to hear the complaints.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaints were not submitted within the permitted 6 months I am unable to accept that there is reasonable cause to extend the time limit. I therefore do not have jurisdiction to hear the complaints.
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Dated: 7th June 2022
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Time Limits. |