Complainant

Respondent

Parties

Darryl  McMahon

Pat Smith Engineering Limited t/a  P S E Power

Representatives

  Self

IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00043460-001

08/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00043460-002

08/04/2021

The Complainant commenced his employment with the Respondent on 15th January 2018. His employment was terminated on 10th June 2020.

The Complainant referred his claims to the Director General of the WRC on 8th April 2021 alleging that he was unfairly dismissed and that he did not receive his statutory minimum period of notice on termination of his employment or payment in lieu thereof.

The Respondent argues that the Adjudication Officer does not have the jurisdiction to hear the claim that has been submitted by the Complainant.

Section 8 (2) of the Unfair Dismissals Act 1977 states as follows; 

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be, within 6 months of the date of the relevant dismissal and a copy of the notice shall be given to the employer concerned within the same period. “

The Respondent argues that, as the Complainant was dismissed on the 10th June 2020 and did not submit his claim to the Workplace Relations Commission until the 8th April 2021 he is clearly outside the time limit to submit his claim and, therefore, the Adjudication Officer does not have jurisdiction to hear the claim. 

The Respondent relies on Smyth v O’Kane Engineering Ltd UD890/1994 where the Employment Appeals Tribunal on appeal, held that there was no jurisdiction to hear a case where an employee lodges a claim for unfair dismissal outside of the required six months and exceptional circumstances did not apply.

The Complainant has stated that there are exceptional circumstances which existed that prevented them from submitting a claim to the Workplace Relations Commission. The Respondent asserts that this was not the case.  An opportunity for a temporary position arose on a completely different side of the business, the Respondent engaged with the Complainant, and he accepted a fixed-term contract from September until December 2020.   The Complainant’s representative wrote to the Respondent on the 7th December 2020 requesting that he be returned to a full-time permanent contract of employment upon expiry of his fixed-term contract on the 23rd December 2020, or they would have no alternative but to lodge a claim for unfair dismissal with the Workplace Relations Commission.Whilst the timing of this correspondence was within the timeframe for the Complainant to take a claim, this action was not undertaken for a further four months and therefore the Respondent would strongly dispute that exceptional circumstance precluded the Complainant from lodging the claim within the required timeframe.

In respect of the preliminary matter of time limits the Complainant submits as follows.

The Complainant made representations to the Respondent in an attempt to put right what he viewed to be an unfair dismissal under the guise of a redundancy, by requesting he be returned to the original terms and conditions of his permanent contract prior to the ending of the fixed term contract he was placed on subsequent to his dismissal. 

The relevance of this goes to the heart of the timing of lodging the complaint with the WRC as it was always the Complainant’s stated preference to be returned to his original position post his termination, taking a claim was never his preferred option. At all times the Complainant attempted to preserve the goodwill and working relationship with his employer, taking a claim was never his first thought, preserving his employment and good name was all he wanted to do.

Even after the expiry of the fixed term contract, the Complainant held off lodging his claim in the hope of securing alternative employment but as time passed and it became apparent that the Complainant was not securing alternative employment, he was left with no alternative than protect his position by lodging a claim with the WRC within 12 months of the date of his dismissal. 

The Complainant has demonstrated through his proactive approach that in submitting his claim within 12 months and not 6 months he did so under reasonable cause. 

At the adjudication hearing, the Complainant submitted that his head was not in the right place at the time. He said that his partner suffered complications after a surgery in August 2020.  He said that referring a claim was not something he wanted to do, even though the HR adviser that acted on his behalf at the time advised him to lodge a claim. He said that he is not an opportunist, but he felt that he wasn’t there for his partner when she needed him and he decided that he needed to do something about it. He said that he understood that there would be an extension to the time limit.

Relevant law

Section 8(2) of the Unfair Dismissals Act, as amended provides as follows:

“A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

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.”

The Complainant referred two claims to the Director General of the WRC on 8th April 2020, under section 8 of the Unfair Dismissals Act 1977 and under section 12 of the Minimum Notice & Terms of Employment Act 1973. The relevant legislation provides, in effect, that where reasonable cause is shown for a delay in presenting a claim under the acts, the 6 months’ time limit may be extended to a period not extending 12 months beginning on the date of the relevant dismissal in the unfair dismissal claim and beginning on the date of the contravention to which the complaint relates to in the claim in respect of the minimum notice.  

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll, DWT 38/2003. 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.

The Complainant submitted that the reasons for the delay were twofold, firstly that taking a claim was never his preferred option as he attempted to preserve the goodwill and working relationship with his employer, and secondly that he was not in the right place following his partner’s surgery.

The Complainant had the benefit of professional advice from approximately the end of November 2020. On the Complainant’s own evidence, the HR consultant advised the Complainant to refer his claim to the WRC. I note that, in the letter dated 7th December 2020, the Complainant’s representative clearly states that “in the absence of an agreeable resolution [the Complainant] will have no alternative than lodge a claim for Unfair Dismissal with the Workplace Relations Commission”. While the Complainant would have preferred to resolve the matter without recourse to the WRC, I find that his attempts to do so did not preclude him from commencing a complaint process with the WRC. 

I note that the Complainant’s partner returned home after her surgery in August 2020. Around the same time, in August 2020  the Complainant went back to work for the Respondent, albeit on a fixed term basis. I, therefore, cannot accept that the Complainant’s partner’s health difficulties would have prevented the Complainant from submitting his complaint to the WRC.

Having carefully considered the evidence before me, I have concluded that the Complainant has not shown reasonable cause to empower me to extend the applicable time limits.

I find that the complaint has not been referred to the Director General of the WRC within the time limits provided for in Section 8(2) of the Unfair Dismissals Act. Accordingly, I do not have jurisdiction to inquire into the complaint.

I find that the complaint has not been referred to the Director General of the WRC within the time limits provided for in Section 41 of the Workplace Relations Act. Accordingly, I do not have jurisdiction to inquire into the complaint.

Time limits – unfair dismissal- minimum notice