Complainant

Respondent

Parties

Barbara  Byrne

Flutter Entertainment PLC

Complainant

Respondent

Anonymised Parties

Representatives

Mr. Robert Mc Namara, Mandate Trade Union

Ms. Susan O'Riordan, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00029165-001

19/06/2019

The Complainant commenced employment with the Respondent on 15th April 2001. The Complainant employment with the Respondent terminated on 15th August 2018.

On 19th June 2019 the Complainant referred the present complaint to the Commission. Herein, she alleged that she did not receive the correct break entitlements as provided for by the Act. By response, the Respondent denied this allegation, stating that all statutory entitlements were provided for the Complainant.

A hearing in relation to this matter was convened for, and finalised on, 5th May 2020. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

At the outset of the hearing, the Complainant made an application to extend the cognisable period of the Act on the grounds of “reasonable cause”. This application will be considered prior to the substantive issue.

The Complainant’s representative submitted a set of complaints regarding a series of similar breaches on 21st September 2018. As this this set of actions involved a significant amount of individual applications, the Complainant’s representative created a bespoke “online portal” to facilitate the referral of such claims. In or around that time, the Complainant left a message with her then representative, requesting that she be added to the list of referrals. Unfortunately, it appears that this message was not passed on, and the Complainant’s case was not referred at that time.

In April 2019, having heard of the outcome of the other matters in the media, the Complainant enquired as to the status of her particular complaint. Following an internal review of the matter, the Complainant’ representative confirmed that the matter had not be referred at the relevant time and the present matter was referred.

By submission, the Complainant’s representative stated that the unusual nature of the initial referral coupled with the Complainant’s understanding the that matter had, in fact, been referred at the relevant time, constitute reasonable grounds upon which the cognisable period may be extended. 

By response, the Respondent submitted that the Complainant had not established “reasonable cause” within the meaning of the Acts. In particular, they submitted that it is well-established that a failure on the part of the representative cannot ground such a claim.

Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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.”

Section 6(8) provides that,

“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.”

The established test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. 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.”

In the present case, I note that the Complainant has relied upon her former representative’s apparent failure to pursue this complaint on her instructions as grounding her application as the “reasonable cause” for the purposes of the Act.

In the matter of Medical & Industrial Pipeline Systems -v- David Dunne, MND191, the Labour Court held that,

“The Court has consistently taken the approach that it is for the Applicant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. Having considered the submissions advanced in the course of the appeal, the Court cannot accept that an oversight on the part of the Trade Union representative is sufficient to explain the delay.”

Having regard to the foregoing, I find that the apparent failure of the Complainant’s former representatives to progress the complaint in good time is not sufficient grounds upon which to establish “reasonable cause” to extend the relevant period for the purposes of the Act.

In circumstances whereby it is common case that no breach of the Act occurred within the six month of the referral of the present complaint, I find that the same is not well-founded.

I find that the complaint is not well-founded.

Extension of Time, Reasonable Cause, Representative