Complainant

Respondent

Parties

Nicholas Kirwan

Tierney Farms Ian Tierney

Representatives

Michael Morrissey Morrissey Solicitors

Seán Ormonde Sean Ormonde & Co.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042918-001

05/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042918-002

05/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042918-003

05/03/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042918-005

05/03/2021

Respondent:

The Respondent states that the Complainant was employed by the Respondent farm from the 05.03.2021 to the 30.03. 2020. He filed his claims CA 42918- 01,02,03 and 05 on the 05.03.2021.  The Complainant has six months to file his claims before the WRC and that can only be extended by a further six months if the Complainant can show cause. He has failed to show cause and therefore the claims are statute barred.  The Complainant instructed different solicitors who wrote to the Respondent in July 2020. The claims were not filed at that juncture. He also sets out in his correspondence that he spoke to the WRC on a number of occasions and was told that he had six months to file his claim. The Complainant’s daughter is also a barrister, so he had legal advice available to him.

In relation to the payment of wages claim, his last payment due date was the 19.10.2019 which means that that claim is sixteen months out of time.  

In relation to the Redundancy claim, the Complainant was placed on temporary lay off at the end of March 2020 due to the pandemic. In April 2020 he requested his redundancy. On 1st May he returned his work phone via the post office. The Respondent also contends that no redundancy type situation existed at the time. There was work for the Complainant to do on the farm.

Complainant:

The Complainant’s employment ended on the 01.05.2020 when he handed back items he had belonging to the Respondent. It is accepted that the end date on the complaint form is the 30.03.2020. That was also in the middle of the worst of covid. There was a lock down and even the Circuit Court office was closed. Solicitor’s offices were also closed at the time.  Heather Humphries enacted legislation to extend time. The Complainant is a quite elderly man. He instructed different solicitors in the summer of 2020. They did write to the Respondent, but no complaints were filed at that time.  It did take the Complainant a long time to come to terms with the ending of his employment. He had been there since 1995. Even before the pandemic there was little or no farm work to do around the farm. He spent his time getting properties ready for sale.

CA 42918 -01, CA 42918 -02, CA 42918 -03

The Respondent alleges that the above three claims are statute barred. The complaints were filed with the WRC on the 05.03.2021. His employment ceased on the 30.03.2020. However, adding the notice period brings the end date up to the 25.05.2020. The Complainant had, at the very latest, six months from that date to file his claims. Unfortunately, that is still well outside the six months period.

Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'.

Without prejudice to the above argument “reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “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 v Carroll.  Here the test was set out in the following term;

“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 of 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 had not been present he would have initiated the claim on time.”

In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should been 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 and others .   The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation  .  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 were justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It is clear from the authorities that the test places the onus on the Applicant on 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 link between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, I 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.  It is the actual delay that must be explained and justified. 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.  

The reasons put forward by the Complainant are that he was a quiet elderly man who needed some time to get over the trauma of losing his employment. He also argues that it was during the pandemic and that made if it very difficult to file the claims.

I note that the Complainant did seek legal advice in July 2020. His then solicitors wrote to the Respondent in relation to the claims at that time. However, the complaints were not filed then. He also spoke to the WRC and was informed of the statutory time period. The fact that that time period was during the pandemic is not relevant in circumstances where the WRC complaints are filed online and also the Complainant clearly had access to legal advice during that time.

In all of the circumstances I find that the complaints CA 42918 – 01, 02 and 03 are statute barred.

I also find that the same principles apply to the redundancy claim CA 42918 -05. The Complainant was placed on lay off at the start of the pandemic. He then asked the Respondent for a redundancy payment on 30th April 2020. He was informed that a redundancy situation did not exist at that time and that the lay off was covid related and was temporary. He then returned his work phone on the 1st May 2020. He did not return to work thereafter. By letter dated the 30th April 2020 the Respondent wrote to the Complainant stating that he needed him to return and he needed help on the farm. The Complainant did not go. He says for the year or so before the pandemic there was little or no farm work to do anyway.

 Before I can embark on the task of assessing whether or not a redundancy situation actually existed at the material time, I must first establish jurisdiction to hear the complaint.

The Complainant’s last day of work was the 30.03.2020. Similar to the claims set out above, even adding the notice period does not assist the Complainant in bring this claim within time. In all the circumstances and for the reasons set out above I find this complaint is also statute barred. I do not have jurisdiction to entertain the arguments put forward by the parties in relation to whether or not a redundancy situation existed at the material time.  

All of the claims contained with ADJ 32429 are statute barred.

 Legal advice. Delay. Covid. Statutory period. Reasonable cause.