FULL RECOMMENDATION
PARTIES : MUIRIOSA FOUNDATION DIVISION :
SUBJECT:
DETERMINATION: Background Preliminary issue. The Complainant accepts that her complaint was lodged out of time but submits that there was reasonable cause as to why it was submitted late and therefore, she should be granted an extension of time. The Complainant submits that she was completely stressed by what had happened and at that time she had only recently started work as a Senior Social Work Practitioner with her current employer. The Complainant submitted that she was concerned if she submitted the complaint she would be dismissed by her new employer before she completed her probation. The Complainants representative submitted that the Complainants real fear that she would not successfully pass her probation with her new employer if she lodged the complaint meets the test set out inDWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carrollfor reasonable cause. The Law (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. Discussion The issue arising in this appeal 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 inLabour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll.Here 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. It is clear from that case 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 in time were it not for the intervention of the factors relied upon as constituting reasonable cause. The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The reason proffered by the Complainant does not explain the delay particularly in circumstances where within the time limit, she lodged a similar complaint against her new employer and suffered no detriment. Determination
NOTE |
