Complainant

Respondent

Parties

Patrick  Geoghegan

 Carnaross Mart

Representatives

  Complainant’s partner

 Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00045724-001

18/08/2021

The complainant was employed by the respondent for two days a week as a Mart Operative since 2002. The complaint was submitted to the Workplace Relations Commission (WRC) on 18th August 2021. The complainant is seeking his redundancy entitlements.

The respondent contends that the complaint is out of time. The respondent outlined that the Mart closed for one week only in March 2020 to facilitate a change in service provision during the covid pandemic. The respondent stated that the Mart re-opened providing online services but that the complainant did not return to work due to unfounded concerns relating to covid 19 safety protocols in the workplace. The respondent stated that it formally requested the complainant to return to work by registered letter dated 18th May 2020 but that this letter went unanswered until mid-June 2020 when the complainant informed the employer that he had been injured in a farm accident and would not be returning to work at that time. The respondent stated that when the complainant sought to return to work on 4th August 2020 it was confirmed to him that his position had already been filled by another employee. The respondent stated that it subsequently provided a letter to the complainant when requested to do so for the purposes of his claim for benefits from the Department of Employment Affairs and Social Protection in August 2020.

The respondent stated that the redundancy complaint referred to the WRC on 18th August 2021 was submitted outside of the statutory 12-month period for the referral of complaints under the Redundancy Payments Act, 1967. Accordingly, the respondent contends that the complaint should be dismissed. The respondent further stated that the complainant has not shown that there was reasonable cause for the delay in submitting the complaint and that no extension of time should be given.

The complainant’s stated that the Covid 19 pandemic had caused him great stress in his capacity as his mother’s sole carer and he was preoccupied with that situation at the time. The complainant was also concerned that the respondent had not put in place sufficient precautions and safety measures in relation to curtailing the spread of Covid 19 in the workplace. On that basis the complainant did not return to work as requested and was subsequently injured in a farm accident and was unable to work until August 2020. The complainant stated that when he sought to return to work in August 2020, he was told there was no longer any work for him.

In respect of the delay in submitting the complaint to the WRC., the complainant stated that he was unaware of his rights in relation to his referral to the WRC or the time limits relating to such referrals. The complainant stated that he subsequently contacted the WRC and referred his complaint seeking his redundancy entitlements on 18th August 2021.

The complainant sought his redundancy entitlements in his complaint to the WRC which was submitted on 18th August 2021. The termination date of the complainant’s employment was 4th August 2020. There was no dispute in relation to the termination date and no other issues were raised in the complaint form narrative.

The Applicable Law

Section 24 of the Redundancy Payments Act, 1967 states as follows:

24.Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment—

(a) the payment has been agreed and paid, or

(b) the employee has made a claim for the payment by notice in writing given to the employer, or

(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39.

(2) Notwithstanding any provision of this Act, an employee shall not be entitled to a weekly payment unless he has become entitled to a lump sum.

(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled.

The complaint relating to redundancy entitlements has a 12-month time limit which can be extended to 24 months if reasonable cause can be shown in relation to the late referral. The complaint as submitted on 18th August 2021 is outside the 12-month time limit but within 24 months. Accordingly, an extension of time can be granted if reasonable cause is shown for the delay in submitting the complaint.

Extension of Time

The complainant sought an extension of time on the basis that he was unaware of his employment rights, or the time limits associated with submitting complaints to the WRC. The complainant also stated that he was focused on caring responsibilities at the time his employment ended which was difficult in the particular circumstances of the covid 19 pandemic, and that this situation also resulted in the delay in submitting his complaint.

Reasonable cause

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska v Carroll which states 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.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

The legal test for establishing reasonable cause as set out above requires that a reason is given for the late referral of the complaint. The reason(s) given must both explain and excuse the delay and if these conditions are met, an extension of time may be granted to the complainant.

In respect of the complainant’s lack of knowledge of his employment rights, or the time limits relevant to his complaints, I note the Labour Court Determination in Global Technical Services Limited v Kirstin Miller UDD1824 which states that:

 ignorance of one’s legal rights as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.

This issue is also referenced in a number of other Labour Court Determinations including Pat the Baker v Conor Brennan TUD1813 and Galway and Roscommon ETB v Kenny UDD1624.

In all of the circumstances of the complaint and having considered the reasons put forward by the complainant for the delay, I do not find that the “reasonable cause” test as set out in Cementation Skanska v Carroll DWT0338 has been met. Accordingly, I do not grant the extension of time.

Having considered the matter, I find that the complaint is out of time and is therefore statute barred.

Redundancy complaint, out of time.