Complainant

Respondent

Parties

Markus  Pedersen

Swordlesstown Little Limited

Representatives

  Self

Thomas Ryan, Peninsula

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, 1997

CA-00043714-001

22/04/2021

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

CA-00043714-002

22/04/2021

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

CA-00043714-003

22/04/2021

The complainant was employed as a farm labourer with the respondent.  He commenced employment on 01/05/2019.  He was paid €2,375 gross [€2,029.54 nett] per week and worked a 57-hour week.  The complainant resigned his position on 30/09/2020.  He submitted his complaint(s) to the Workplace Relations Commission on 22/04/2021.  The complainant made a number of complaints under the Organisation of Working Time Act, 1997,  in relation to rest periods, breaks and working in excess of the maximum daily working time.

At the outset of the hearing the respondent made a submission on a preliminary point.  This was that the complaint(s) were clearly out of time.  I heard both parties submissions on this point and then proceeded to take evidence in relation to the complaint(s).  The parties were informed that a decision on the preliminary point had the potential to dispose of the entire matter.  Both parties confirmed their understanding of this.

Preliminary Point:

The complainant confirmed that he understood the preliminary point being raised by the respondent.  The complainant confirmed that his employment ceased on 30/09/2020.  He had a number of issues in relation to his working hours and other matters and he made a complaint to the Workplace Relations Commission in 2020.   He had a hearing in relation to these complaints and the complainant submits that he “won his case”.  However, an issue arose at that hearing as he had submitted his complaints under the wrong legislation.  He submitted the present complaints under the Organisation of Working Time Act, 1997 on 22/04/2020. The complainant submitted that as his case is within the 12-month timeline it was “well founded to be within the WRC timeline of 12 months” and therefore should proceed to a hearing.  In support of this the complainant said that he submitted his current complaint on 22/04/2021 and the last occasion that he was not paid for all the hours he worked was in June 2020.  The complainant said that as he won his previous case it was important that he now have a hearing under the Organisation of Working Time Act, 1997.  The complainant also submitted that the fact that his complaint was accepted by the WRC indicated that there were no issues and that if there were issues he would have been advised of this when he submitted his complaint.

Preliminary Point:

The respondent submits that the complainant’s employment ended on 30/09/2020.  The complaint was lodged with the WRC on 22/04/2021.  The complainant has not advanced any reasonable cause for the delay.  The respondent clarified that the complainant previously had a hearing in the WRC and the outcome of that hearing was later overturned by the Labour Court on the basis that there was no complaint made under the Organisation of Working Time Act, 1997.  The respondent noted that the complainant has failed to acknowledge this point or include it in his submissions. 

The respondent’s representative made a number of legal submissions:

The test for “reasonable cause” was considered in the leading case of Cementation Skanska v Carroll DWT0338.  This case sets out that there is an objective test and that the circumstances which are relied on must both explain why the delay occurred and that a causal link exists between the circumstances cited and the delay.   In this case the Court stated:

“It is the Court’s view than 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 on time”.

The respondent further relies on the Supreme Court case, under the Employment Equality Acts, of County Louth VEC v Equality Tribunal, [2016] IESC 40.  In that case the Supreme Court Stated that:

“if a complaint is out of time and thus fails to satisfy a condition precedent, and remains so after inquiry, then it cannot be said to have been “lawfully referred” to the Tribunal, such that it may properly be investigated for redress purposes…”    The Court went on to state:  “In addition, the statutory measure does not operate as a defence point or its equivalent (see para. 13 supra).  It [the delay] must therefore be treated as a condition precedent to the exercise of the Tribunal’s jurisdiction”.

The respondent also submitted that the Labour Court decision in the case of Globe Technical Services Limited v Kristin Miller, (UD/17/177) where the Court held that ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complaint referral form.  “It is settled law that ignorance of one’s legal rights, (Ignorantia juris non excusat), as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time”

It is the respondent’s position that the complainant did not submit his complaint within the six-month time limit and as such it has not been lawfully referred to the Workplace Relations Commission.

Preliminary Point:

The applicable law:

Workplace Relations Act, 2015,

41.

“(6) Subject to section (8), and 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 issue to be decided in this preliminary point is whether the complainant has shown reasonable cause for a delay in submitting the complaints. The relevant case law is outlined above.  The complainant has submitted that his lack of knowledge of employment law and the applicable time limits is sufficient grounds to grant an extension of time.  I do not accept this as a reason to excuse the delay in submitting the complaints.

In view of the foregoing I am satisfied that was presented to the WRC outside the statutory time limit and that the test for reasonable cause has not been met.

I find that the complainant in this case has not provided any evidence to establish that there was a reasonable cause which would justify his delay in referring his complaints to the Workplace Relations Commission.  I find that this complaint is out of time.

Reasonable cause.  Preliminary point.