UDD2254

1.Appeal of Adjudication Officer Decision No’s: ADJ-00033548 CA-00044367-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 07 December 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 23 August 2022. The following is the Determination of the Court:




DETERMINATION:

This is an appeal by Gilford Montessori School Ltd (the Respondent) against the decision of an Adjudication Officer under the Unfair Dismissals Act 1977(the Act) a in a complaint by Ms Claire Humphreys (the Complainant) that she was unfairly dismissed. The Adjudication Officer held that the complaint was well founded, that reasonable cause had been established for lodging the Complainant outside of the statutory time limits and awarded compensation of €16,794.

Background

The Complainant commenced employment with the Respondent on 10th April 2012 as an after-school manager. Immediately prior to the Covid pandemic the Complainant was out sick and therefore she did not fall within the scope of the Temporary Wage Subsidy scheme when the Respondent’s business had to close. In and around May 2020 as she had no source of income, the Complainant sought alternative employment and notified the Respondent. It is the Complainant’s submission that she was dismissed at that point by the Respondent. It is the Respondents submission that the Complainant resigned her position.

The Complainant lodged her complaint with the WRC on 27^thMay 2021 and is seeking an extension of time based on reasonable cause back to the date of termination. In the alternative the Complainant is seeking that the Court find that the actual date the employment ceased was the 20^thMay 2021 when she submitted a letter of resignation and therefore her complaint is within the statutory time limits. The Court with the agreement of the parties considered the two preliminary issues first.

Complainant’s submission

The Complainant submitted that her employment was terminated on the 11^thMay 2020. As a long-term employee, she had a legal entitlement to four weeks’ notice which would bring her termination date to the 8^thJune 2021 which is within the extended time limits provided for in the Act. The Court attention was drawn to the case ofCementation Skanska v CarrollDWT 0338 where the test for reasonable cause was set out by this Court. The Complainant’s representative submitted that the test is an objective one and the circumstances must explain why the delay occurred and the casual link that bring the circumstances and the delay together.

In this case the Complainant found herself in a predicament arising from the pandemic whereby she had no income as she did not qualify for the EWSS scheme or the PUP scheme. The Complainant contacted the Respondent to let them know she was looking for other work and requesting that they provide a reference. At that point she was told by the Respondent that if she got another job her employment with them would cease.

The Complainant through her Union engaged with the Respondent seeking clarification on whether she had been dismissed or made redundant and seeking redundancy payment. The Complainant submitted that the Respondent kept misrepresenting the situation by stating that she had resigned when in fact she had not. The Complainant does not this dispute that she submitted a complaint to the WRC under the Redundancy Payment Acts on the 4^thSeptember 2020 which was within the statutory time limits. The representative for the Complainant submitted that the Complainant chose to go down the route of the Redundancy Payment Act as she felt Redundancy was a legal entitlement and that it would impact less on her relationship with the Respondent.

Unfortunately changes made to that Act on foot of Covid meant she could not pursue that complaint. The circumstances that led to the delay in the Complainant submitting her complaint flowed from the exceptional circumstances of the pandemic and that these circumstances met with test set out inCementation Skanskaand other case law.

In respect of the Complainant’s alternative submission that, the employment did not cease until she submitted her resignation letter of 20^thMay 2021. The Complainant’s representative accepted that there was no engagement of any nature with the Respondent after September 2020 and could offer no proof of an employment relationship existing after that time.

Respondent’s submission

The Respondent submitted that the Complainant had not shown reasonable cause why the claims were not submitted in time. The Complainant had submitted a complaint to the WRC on the 4^thSeptember 2020 under a different piece of legislation which she subsequently withdrew. This clearly shows that there was no barrier to her submitting her complaint in time.

It is also clear from the communications at the time that she had representation from her Union. It is the Respondents submission that the Complainant has failed to establish that reasonable cause existed that prevented her from submitting her complaint within the statutory time limits.

In respect of the alternative argument, the Complainant lodged a complaint with the WRC on 4th September 2020 where she states that her employment ended 14/4/2020. It is not now credible for her to say that it didn’t actually cease until May 2021. The fact of her sending in a letter stating that she was a resigning does not prove that an employment relationship was in existence at that time.

The form submitted in September 2020 by the Complainant, states “Ifeel that I was dismissed due to unfair selection for redundancy. I was unfairly dismissed I wish the WRC to hear my case.” The is clear proof that in September 2020 the Complainant was fully aware that the employment relationship had ended. The only matter that was in dispute between the parties was how the relationship had ended.

Conclusions of the Court on the Preliminary Matters

In addressing the Complainant’s alternative submission first, the Court finds that it has not been provided with any proof to support a contention that an employment relationship between the Complainant and the Respondent existed in May 2021.

All the documents provided to the Court would support the contention that both parties were clearly of the view from in and around May 2020 that the employment relationship had ended. What was in dispute at that time was the nature of how it had come to an end. On that basis this element of her complaint must fail.

In respect of the Complainant’s application for an extension of the statutory time limits, the Court in the case ofCementationSkanska (Formerly Kvaerner Cementation) v CarrollDetermination DWT0338 established the test for deciding if an extension should be granted for reasonable cause. 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.

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 Complainant submitted that issues arising from the Covid Pandemic had prevented her from submitting her Unfair Dismissal complaint to the WRC until 27^thMay 2021. The Complainant did not dispute the fact that she had the assistance of her Union in 2020 and that they had engaged with the Respondent on this issue. Nor did she dispute that she had submitted a complaint under a different piece of legislation to the WRC on the 4^thSeptember 2020.

It was therefore not clear to the Court how the same set of circumstances had prevented the Complainant from lodging her Unfair Dismissals complaint within the same timeframe.

The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Complainant’s last date of employment was the 8^thJune 2021. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place.

As the Complainant’s claim was not presented to the Workplace Relations Commission until 27^thMay 2021 it was therefore outside of the statutory time limit.

The Court finds that the reason proffered by the Complainant that issues arising from the Covid Pandemic prevented her from lodging her complaint on time do not provide reasonable cause in circumstances where she was able to lodge a different complaint during that period to the WRC.

As set out above the Complainant should satisfy the Court that as a matter of probability if the circumstances being relied on had not existed the complaint would have been submitted on time. It is clear from the circumstances of this case that the circumstances being relied on did not prevent her from submitting a complaint on the 4^thSeptember 2020 therefore, they could not have prevented her from submitting this complaint during the same time frame. The Court finds that the Complainant has not provided a reasonable cause that explains the delay and afford an excuse for the delay.

Determination

For all the reasons set out above, the Court finds that the complaint under the Act is statute-barred and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter.

Accordingly, the Respondent’s appeal is allowed, and the Decision of the Adjudication Officer is set aside.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CN	______________________
5 September 2022	Deputy Chairman