MND2213

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00032889, CA-00043460-002.

BACKGROUND:

2. This is an appeal by Mr Darryl McMahon (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00032889/ CA-00043460-002, dated 16 March 2022) under the Minimum Notice and Terms of Employment Act 1973 (‘the Act’). The Adjudication Officer held that the complaint had been referred to the Workplace Commission out of time and that the Complainant had not demonstrated reasonable cause for the delay. Notice of Appeal was received by the Court on 4 April 2022. The Court heard the appeal in Limerick on 6 October 2022.




DETERMINATION:

It is common case that the Complainant’s employment with the Respondent commenced on 15 January 2018 and terminated by reason of redundancy on 10 June 2020. It is also common case that the Complainant did not receive two weeks’ prior notice of his dismissal by reason of redundancy. It follows, therefore, that the six-month period within which he was permitted to refer a complaint under the Act to the Workplace Relations Commission expired on 9 December 2020. His complainant was not received by the Workplace Commission until 8 April 2021.

Application for Extension of Time

The Complainant submits that he should be permitted an extension of time to bring his claim for ‘reasonable cause’. In support of his application, he told the Court that his wife underwent a surgical procedure in August 2020 that was unsuccessful with the result that she needed significant care and support thereafter which he provided. He also told the Court that he had to take full responsibility for the care of their three children for a period of several months while his wife underwent, and recovered from, a second surgical procedure.

The Respondent opposes the application and submits that the Complainant was offered and accepted a fixed-term contract of employment in a different part of its business for the period September to December 2020. The Respondent also submits that the Complainant instructed a professional Human Resources Consultant to write to it on his behalf on 7 December 2020. In that correspondence, the Complainant requested that he be returned to permanent employment by the Respondent, failing which he would refer a complaint under the Act to the Workplace Relations Commission.

The Law

Section 41(6) of the Workplace Relations Act 2015 provides:

• “(6) Subject to subsection (8), an 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.”

In Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425, the Court stated:

• “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 his or her 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.

  In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material 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.”

• “It is clear from the authorities 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 the complaint 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. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.”

The latest date on which the Complainant herein could have referred his complaint under the Act to the Workplace Commission within that statutory timeframe for doing so was 9 December 2020. Nevertheless, he delayed referring his complaint under the Act until 8 April 2021 – some four months outside the six-month statutory timeframe. He seeks to explain and justify that lengthy delay on the basis of his wife’s ill-health following an operation in August 2020 and the additional caring responsibilities he had to assume thereafter.

The Court – having considered carefully the Complainant’s submission and evidence– finds that the Complainant has not met the threshold to establish reasonable cause that both explains and affords an excuse for his considerable delay in referring his complaint to the Workplace Relations Commission. The Court is particularly mindful of the fact that the Complainant was in a position to resume full-time employment in September 2020, notwithstanding his additional caring responsibilities, and that he instructed a HR Consultant to act on his behalf in early December 2020 – when he was still within time to refer his complainant under the Act to the Workplace Relations Commission.

Having so determined the preliminary issue, it is unnecessary for the Court to determine any further issues in this appeal. The decision of the Adjudication Officer is, therefore, upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
IK	______________________
8 November 2022	Deputy Chairman