FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : A COMPANY, (REPRESENTED BY MR ROWLAND ROWAN B.L., INSTRUCTED BY FIELD FISHER, SOLICITORS) - AND - A WORKER DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(s)ADJ-00005776 CA-00008023-001 DETERMINATION: This is an appeal by a worker, ‘the Complainant’, under the Unfair Dismissal Act 1977 to 2015, ‘the Act’. Preliminary Issue The Complainant made application, in accordance with s.44(7) of the Act, to have the proceedings anonymised. That section reads as follows; (7) Proceedings under this section shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public. The Complainant outlined details of his state of mental health and his concern at the possible impact on his well-being, in the event that his details were publicised. The company concerned, ‘the Respondent’ was represented and the representative indicated to the Court that the Respondent was happy to leave this matter to be determined by the Court. On the information provided, the Court determined that the Complainant’s psychiatric condition and potential consequences for his welfare constituted ‘special circumstances’ within the meaning of the Act to warrant the names of the parties being anonymised. Time Limits The Complainant was dismissed by the Respondent on 4 April 2016. He lodged his complaint under the Act with the Workplace Relations Commission, ‘WRC’, on 7 November 2016. The relevant provisions of the Act read as follows; 8. 2) 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, The Adjudication Officer, ‘AO’, decided that ‘reasonable cause’ had not been shown for the delay in submitting the complaint as required by the Act. The Complainant appealed this Decision. Summary of Complainant arguments. Note: The Court receive voluminous correspondence from the Complainant. The following is an attempt by the Court to summarise the arguments on this matter, based on what the Complainant outlined at the hearing. In the period subsequent to the dismissal, the Complainant suffered from burn-out, exhaustion and a feeling of being under threat. He was ill and suffering from paranoia and hysteria as a consequence of post-traumatic stress, ‘PTSD’. English is not the Complainant’s first language. The combined effect was to render the Complainant unable to lodge his complaint in the relevant time period. Summary of Respondent arguments. The obligation to provide reasonable cause to explain a delay rests with the Complainant. He has singularly failed to provide such, in circumstances where he engaged throughout the relevant period with the Respondent, various Government Departments regarding welfare payments and the Personal Injuries Assessment Board. Long before his dismissal, the Complainant had the benefit of legal advice. On 25 April 2016, the Complainant submitted a claim for personal injury to the Personal Injuries Assessment Board i.e., just weeks after his dismissal. The test for ‘reasonable cause’ was set out in the case ofCementation Skanska v Carroll, DWT 0338,as follows. 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. There is a five-step test for reasonable cause. 1 The Complainant must explain the delay 2The explanation must be reasonable 3There must be an objective standard, applied in the circumstances of the case 4There must be a causal link between the circumstances and the delay 5 The Complainant must show that, if the circumstances were not present, he would have submitted his claim. The Complainant has not met these tests. The Court’s attention is drawn to correspondence between the Complainant and the Department of Social Welfare and that Department’s Appeals Office in the relevant period regarding claims being pursued by the Complainant, in which he appears to have had no difficulty in putting forward his case. Deliberation. The relevant tests to determine reasonable cause were outlined in the‘Cementation Skanskacaseand they are set out above in the summary of Respondent arguments. Those tests draw heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows:
The Court cannot ignore the fact that, in the instant case, the Complainant was in a position to pursue claims regarding his social welfare entitlements and to pursue a personal injuries claim in the 6 months’ period subsequent to his dismissal. This does not suggest that the Complainant was incapable of making a complaint of unfair dismissal under the Act within that time-frame. The Court does not doubt the Complainant’s health difficulties or the fact that he found the fact of his dismissal to be traumatic. However, he was clearly capable of dealing with other matters in that period. Therefore, in establishing reasonable cause for the delay in lodging a complaint under the Act, it is necessary for him to show that there was some factor that prevented him from submitting such a complaint while he was capable of making other claims to other bodies, to fill out relevant online forms and to engage in correspondence regarding those matters. He has not been able to do so to the satisfaction of the Court. Accordingly, the Court concludes that the complaint was submitted outside of the prescribed time limits without reasonable cause and the Court does not have jurisdiction to hear the appeal. Determination: The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Sinead O'Connor, Court Secretary. |
