Complainant

Respondent

Parties

Britney  Sugar

Supervalu

Representatives

  Self

Mark Comerford 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-00047087-001

09/11/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00047087-002

09/11/2021

The complainant was employed as a sales assistant with the respondent from 27/10/2020 to 29/12/2020. She was paid €10.52 per hour and worked 32 hours per week.  The complainant resigned citing alleged harassment and bullying as her reasons.  The respondent offered the complainant the opportunity to work in another department and advised her of the grievance and dispute policy.  The complainant subsequently confirmed that she did not wish to move to another department or raise a formal grievance.  When the complainant made no further contact with the respondent her resignation was then processed.

The complainant submitted her complaint form to the Workplace Relations Commission on 09/11/2021.

The respondent raised a preliminary issue in relation to the time limits for submitting a form to the WRC under the relevant legislation. The complainant submitted her complaint to the WRC on 09/11/2021.  The complainant outlined in her complaint form that she had a consultation with Mandate Trade Union in relation to this matter.  At the hearing it was confirmed that this consultation took place with a trade union official. The respondent submits that the complainant would have been advised by an official who would have been adequately equipped with the knowledge of the dispute resolution mechanisms provided by the WRC.  It was submitted on behalf of the respondent that the complaints as so far out of time a decision on this preliminary matter is essential and should be made prior to any evidence being adduced in relation to the substantive complaints.

The respondent’s representative opened a number of cases at the hearing in relation to this matter.  The case of Bus Éireann v SIPTU PTD 048/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expenses’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required’ referencing the judgement of O’Higgins CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242.   A further case of Employee v Employer UD 969/2009 the Employment Appeals Tribunal was asked to decide on a preliminary matter first before moving to hearing the substantive case.  Given the significant preliminary points raised, the Tribunal in that case moved to hear the preliminary point first and reach a decision on same.

The complainant was initially advised by the WRC that her complaint may be out of time. The complainant submitted a written response to explain the delay in submitting her complaint form to the WRC.  She outlined that her employment finished during the Christmas period, and she made at least five attempts to contact various solicitors about her case but none of them got back to her. She was unaware that the WRC was the place to go with her complaint and became aware of this when she attended college.  The complainant also outlined that the COVID-19 restrictions “really got in the way of letting me know what my options are”.

At the hearing the complainant agreed that the matter would be adjourned to allow a decision to be made on the preliminary matter.  She confirmed her understanding that if the complaints were deemed to be “in time” then a further hearing would be scheduled and alternatively if her complaints were deemed to be out of time then the matter would not be rescheduled, and the WRC would have no jurisdiction to hear her complaints.

The Workplace Relations Act, 2015 Section 41 states:

S.41. (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...

S.41. (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”.

These claims were presented to the WRC more than 10 months after the complainant’s employment ceased.  The 6-month time limit may be extended where I am satisfied that there was reasonable cause for the complainant failing to make a claim within the 6-month period.

The established test for reasonable cause for the purpose of granting an extension of time is that formulated by the Labour Court in Cementation Skanska v Carroll DWT0338 wherein 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 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 onus is on the complainant to identify the reason for the delay and to establish that the reason relied upon amounts to reasonable cause for that delay.

The complainant submitted that the delay in referring her claims was on account of her difficulty in engaging a solicitor and her understanding that there was a COVID-19 impact on her ability to submit the complaint form. She stated that it was only after she commenced college that she became aware that she could submit a complaint to the Workplace Relations Commission.  The complaint gave evidence that she was a member of a trade union and had consulted with a trade union official in relation to her complaints.

The complainant has reasoned why she did not refer her claim within time, I cannot find that the reasons given explain and excuse the delay. 

I find that this claim was referred outside of the time limit set out in section 41 (6) of the 2015 Act and I am not satisfied that the failure to refer the claim within time was due to reasonable cause.

Accordingly, I find that I do not have jurisdiction to decide the claim under the 2015 Act.

I find that I do not have jurisdiction to decide the claim under the Workplace Relations Act, 2015.

Time limit