Complainant

Respondent

Anonymised Parties

A Contract Cleaning Operative

A Cleaning Company

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00044524-001

08/06/2021

The Complainant was employed as a contract cleaning operative in X offices, in Dublin city. Her employment there had commenced with another company on the 7th of February 2019, and she transferred over to the respondent under a TUPE process on the 1st of December 2019.  Her employment ceased on the 8th of September 2020.

The Complainant referred the within complaint to the Director General of the WRC on the 8th of June 2021 alleging that she was unfairly dismissed.  The cognisable 6-month period encompassed by this claim dates from 9th of December 2020.

The complainant submits that she was unfairly dismissed by the respondent on 8th of September 2020, she submitted a claim to the WRC on 8th of June 2021.

The respondent submits that the within complainant was submitted outside of the time limits permitted under Section 41 of the Workplace Relations Act of 2015 which sets out that a claim under the Unfair Dismissals Act must be presented within 6 months of the last alleged contravention.

In addition, the complainant was not dismissed but was one of a number of staff made redundant on foot of a genuine redundancy situation in which the selection criteria was equally applied to all, and alternative positions were offered. 

The Complainant referred the within complaint on the 8th of June 2021.   The cognisable 6-month period encompassed by this claim dates from 9th of December 2020 to the 8th of June 2021.    The complainant submits that she was unfairly dismissed on the 8th of September 2020.  

The respondent submits that the within complainant was submitted outside of the time limits permitted under Section 41 of the Workplace Relations Act of 2015 which sets out that a claim under the Unfair Dismissals Act must be presented within 6 months of the last alleged contravention.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“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 first matter I must decide is if reasonable cause has been shown to empower me to extend the cognisable period (i.e., the length of time that can be taken into account) for this complaint as requested by the Complainant.  In making my decision, I must take account of both the relevant legislation and the legal precedent (e.g., Labour Court determinations) in this area.

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 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.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and give a reason for the delay as to why the complainant failed to submit her claim within 6 months of the alleged dismissal i.e., between 8th of September 2020 and the 7th of March 2021.

The complainant in the present case in support of the late filing of her claim, has advanced medical reasons for her failure to submit her claim on time.

The complainant advised the hearing that she had suffered a miscarriage in 2019 following which she had suffered from gynaecological problems.    The complainant also advised the hearing that she had not been well mentally.  

The complainant in support of her application for an extension of the time period produced a number of back-dated medical and other certificates which pre-date by many months the date of her termination of employment.

One of these certificates stated that the complainant had been unfit to attend college between the dates of 1st of September 2019 and 31st of January 2020 due to medical procedures and complications.    

I must question the relevance of this certificate as it covers a time period up to end of January 2020, a year and a half before the complaint was submitted, I note that the complaint would have been in time had it been submitted anytime up to the 7th of March 2021.

The complainant also submitted a medical cert dated 7th of March 2020 from the Well Woman Centre which certifies the result of standard blood tests and states that all levels other than iron were within "normal range".  A further medical cert dated 7th of May 2020 was also provided certifying the complainant as unfit to attend college until the end of term due to mental health issues.

Again, it is again not clear how this is relevant to the current application as it refers to a period ending in June 2020.   A further back dated medical certificate was provided which refers to the period of 9th of December 2020 to 23rd of December 2020 which alleges that the complainant was unable to attend work due to a gynaecological problem.   I note that the timeframe referred to in this certificate is 3 months after the conclusion of the complainant’s employment, but it still provides no explanation as to why the complainant failed to submit her claim during the 6-month time frame which ended on the 7th of March 2021.

The complainant also submitted a deferral Request Form for a college course, and this was dated 13th of May 2020, within which the complainant stated that she had been suffering from medical problems for a number of years.    This form predates the date of dismissal and so it is difficult to see how this can be taken as evidence in support of the complainant’s failure to submit a claim between the 8th of September 2020 and 7th of March 2021.

The complainant in the present case took almost 10 months to file her claim with the WRC and while she has submitted evidence of various incidents and periods of ill health, the documentation submitted does not relate to the relevant time period.    

Having carefully considered this matter I am satisfied from the totality of the evidence adduced and having examined the supporting documentation that the complainant in this case has failed to establish a causal link between the content of the certificates furnished and her failure to submit her claim to the WRC within 6 months of her termination of employment.

Accordingly, I am satisfied that the complainant has failed to establish ‘reasonable cause’ for the delay in filing her complaint with the WRC and the matter is out of time and therefore statute barred.

I am satisfied that the complainant has failed to establish ‘reasonable cause’ for the delay in filing her complaint with the WRC and the matter is out of time and therefore statute barred.