Complainant

Respondent

Parties

Gerard  Carroll

Instant Upright Ltd

Representatives

Connect Trade Union

 Byrne Wallace

Act

Complaint 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-00041587-001

17/12/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041589-001

17/12/2020

The following is a summary of the Complainant’s case.

The Complainant commenced employment with the Respondent on 1 April 1976. He was due to retire in May 2019, however, he was approached by management and asked to remain in employment for another year, so he decided he would remain working.  The Complainant said he was informed by management that all his entitlements would remain notwithstanding that he was being issued with a new fixed term contract of employment for the added year. Therefore, he was of the firm belief that he would receive all outstanding monies due to him i.e., outstanding holidays and a back week (which he said he had worked when he commenced his employment with the company in April 1976) at the termination of his employment. The fixed term contract states “you will receive payment for any annual leave entitlement not taken at the termination of this contract.”

The Complainant said that he had on a number of occasions from May 2019 approached management regarding the outstanding monies, then in March 2020 just prior to the first lockdown, he again approached management and as like all times before seemed to be fobbed off. Employees were placed on temporary lay-off due to lock down. Following that a number of weeks later a strike commenced and the dispute was only settled in September 2020. He said that the issue of the non-payment of monies due to him was put aside during this period. Shortly after the settlement of the dispute he again tried to make direct contact with the company, but without success. The Complainant claims that the carryover of holiday balances was an established custom and practice throughout the Respondent.  

The Complainant said that the matter of payment of outstanding holiday balances should be addressed as per the Organisation of Working Time Act 1997 which clearly states that it is illegal for an employer to pay an allowance in lieu of the minimum statutory holiday entitlement of an employee unless the employment relationship is terminated. He said that, on leaving his job, he is entitled to receive payment for any outstanding annual leave and public holidays due to him as set out in the legislation.

The Complainant claims that he and his Trade Union raised the issue a number of times with the Respondent but unfortunately to date this matter remains unresolved. The Complainant sent in his pay slip of 21 December 2018 where his holiday balance was 334.55 hours, and these were built up over a two-year period i.e., for 2018 and 2019 as they were extremely busy and leave during this period was refused.

In reaction to the Respondent’s preliminary matter – namely, that the complaint is out of time, the Complainant said that the delay was largely down to the ongoing pandemic, the substantial strike that arose in March 2020 which was not resolved until September 2020 and therefore the general lack of availability and access to the Respondent’s management team, at this time, resulting in a lack of clarity as to whether the Complainant’s outstanding monies would be paid.

The following is a summary of the Respondent’s case.

The Respondent said that the Complainant’s last day on which he physically worked for them was 16 March 2020. His last day of employment with the Respondent was 22 May 2020 but he did not work for the Respondent in the period from 17 March 2020 to 22 May 2020 because of a combination of Covid-19-related lay-off and a strike in which the Complainant participated during that period.

The Respondent said that the complaint was made to the WRC on 17 December 2020, six months and 26 days after the termination of the Complainant’s employment. The complaint was not made within the period of 6 months beginning on the date the alleged contravention occurred. Further to section 41(6) of the Workplace Relations Act 2015, the complaint has been made outside of the permitted time-period. The complaint is therefore out of time.

The Respondent said that although the Complainant has requested an extension of time to bring his complaint, he has not advanced any reasonable cause for the delay. It said that the Complainant had ample opportunity to bring his complaint within the statutory period, as he had raised the issue of his annual leave with the Respondent’s production manager, Mr A, on a number of occasions before the expiration of the statutory time period. The Respondent said that the Trade Union also raised the issue on the Complainant’s behalf on a number of occasions before the expiration of the statutory time period.

The Respondent said that it never gave the Complainant any reason to believe that he would receive any payment in respect of a historical annual leave claim. It disputed the Complainant’s case. The Respondent says that there is no reasonable cause for the delay, that the Complainant had been in contact with the management right through until September 2020, when the dispute was resolved between employees and the Respondent, he had picketed on the line. The Respondent said that he had been fully engaged with his Trade Union also who would have advised him of his case, and he was aware that in August 2020 his Trade Union was put on notice that the Complainant’s situation was outside of the scope of discussions that the Respondent was having with the Trade Union at this time on the resolution of the dispute as the Complainant’s employment had come to an end.

The Respondent claims that there was no reasonable cause for the delay in bringing a complaint within the statutory time-period.

Notwithstanding the preliminary matter raised, the Respondent said that only the statutory leave year in which the Complainant accrued annual leave and that occurred with the period of 12 months prior to the making of the complaint was the statutory leave year from 1 April 2019 to 31 March 2020. Although the Complainant was in the Respondent’s employment for a short period during the subsequent leave year, he did not work during that subsequent leave year and therefore did not accrue any entitlement to annual leave during that subsequent leave year. During the statutory leave year from 1 April 2019 to 31 March 2020 the Complainant received more annual leave than was his statutory entitlement. It said that he received 261 hours paid annual leave for 7.25 working weeks.

Preliminary Matters

It is accepted that the Complainant’s employment came to an end on 22 May 2020. This was his last day of employment. It is also agreed that the complaint was received on 17 December 2020 at the Workplace Relations Commission.

The applicable law in relation to lodging a complaint is provided for in Section 41 of the Workplace Relations Act 2015, which reads as follows,

[…]

(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.

Consideration

It is accepted by both parties that the complaint was lodged outside the 6-month time limit as set in out Section 41(6) of the of the Workplace Relations Act 2015.

The Complainant said that the reason for the delay was due to reasonable cause mainly around the ongoing uncertainty due to the Covid-19 pandemic at the time, coupled with an ongoing dispute the employees had with the Respondent, which had led to a strike and thus there was a lack of engagement with management because of these circumstances.

The Respondent says that there is no reasonable cause for the delay, that the Complainant and his Trade Union had been in contact with the management right through until September 2020. The Complainant’s situation was known; however, no complaint was lodged with the WRC in that time.

The issue arising is whether reasonable cause has been shown for an extension of time.

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ 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 that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It clears 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. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, 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.”

Findings

I am satisfied that the Complainant’s complaint was presented to the Workplace Relations Commission outside of the statutory time limit.

I note that there were regular engagements between the Complainant, his Trade Union and the Respondent on matters relating to his situation in and around the cessation of his employment. However, the complaint was not lodged with the WRC within the time frame and the reasons put forward do not explain the delay. The Complainant was sufficiently aware that he ‘had’ an issue with regard his finances on the cessation of his employment regarding his annual leave. He had access to his Trade Union to advise him. However, the complaint was not filed within the 6-month time limit.

Having considered the argument put forward by the Complainant in applying for an extension of time, I conclude that the reason put forward does not offer an excuse for the delay.

I find that the Complainant has not established that there was reasonable cause justifying the delay in referring this complaint to the Workplace Relations Commission. I deem this complaint to be out of time.