Complainant

Respondent

Parties

Alexandra  Nova

Telefonica Europe (Epsc)

Representatives

  Self

Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00047369-001

28/11/2021

The Complainant was employed by the Respondent from 7 January 2013 until 31 October 2021, initially on a fixed term contract, then on a permanent contract from 9 January 2014. 

The Complainant was on maternity leave from 9 April 2018 until 26 January 2019.  She then took carer’s leave from 27 January 2019 until 27 January 2021.  She was on annual leave from 28 January 2021 until 22 March 2021 and then on parental leave from 23 March 2021 until 20 September 2021.

On 28 November 2021, the Complainant submitted a complaint to the WRC that she was not offered suitable alternative employment on her return from carer’s leave. 

The Respondent submits that the Complainant is statute barred from bringing this complaint and that the complaint should be dismissed.

The Respondent submits that the Complainant’s complaint was filed on 28 November 2021.  However, the Complainant’s carer’s leave ended on 27 January 2021.  As the complaint was filed well outside the six-month time limit required by the Workplace Relations Act 2015, the complaint is statute barred. 

The Respondent submits that the onus is on the Complainant to do the following:

·        to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay;

·        to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time; and

·        the Court must be satisfied, as a matter of probability, that the Complainant 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.

The Respondent submits that none of these factors are present.  The Respondent submits that the Complainant has not put forward any evidence that she had the intention of bringing this claim during this 6-month period following the ending of her Carers’ Leave.

The Respondent submits that ignorance of the law is no defence/excuse for not referring a complaint within the statutory time limit.  The Respondent submits that the reason for this is straight forward in that the statutory timeframe would be meaningless if it only began to run when a complainant became aware of their rights.

The Respondent relies on the following precedents in support of its position: DWT0338 Cementation Skanska v Carroll and Galway & Roscommon ETB v Kenny (UDD1624).

The Complainant submitted that she was due to return from carer’s leave on 27 January 2021.  After carer’s leave the Complainant took annual leave from 28 January 2021 until 22 March 2021 and parental leave from 23 March 2021 until 20 September 2021. 

Before the end of her carer’s leave, the Complainant was contacted by her Manager who informed her that her previous role was no longer in existence. The Complainant was not happy about this and engaged in an email exchange with her Manager about her role in the organisation which continued until her return from parental leave in September 2021.

The Complainant submitted that she thought that carer’s leave and parental leave were covered by the same piece of legislation and that was why she had submitted her complaint under the carer’s leave Act 2001.

The first matter I must decide is if I have jurisdiction to hear this complaint.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

“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.”

I note that the Complainant’s carer’s leave ended on 27 January 2021. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted to the WRC by 26 July 2021.  However, in the herein case, the initiating complaint referral form was received by the WRC on 28 November 2021.

I find, therefore, that the herein complaint has been lodged outside the time limits prescribed by Section 41(6) of the Workplace Relations Act 2015. 

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.”

In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay. 

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.”

I note the Complainant’s assertion that the delay in submitting her complaint to the WRC was due to the fact that she thought that carer’s leave and parental leave were covered by the same legislation and, therefore, by submitting her complaint under the carer’s leave Act within six months of the end of her parental leave, she was within time.

However, as the Labour Court found in Globe Technical Services Limited and Kristin Miller (UD/17/177),ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form:

“It is settled law 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.”

Accordingly, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a complaint under the Workplace Relations Act, 2015.

Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint.

Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit.

I find that I do not have the jurisdiction to hear this case.

Time limits – no jurisdiction