ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043074
Parties:
| Complainant | Respondent |
Parties | Caitlin Nichiaradh | Moyross Community Enterprise Centre (Moyross Adult Education) |
Representatives | Self-represented | Paddy Flannery, Manager |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00053475-002 | 29/10/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00056321-001 | 26/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00056321-002 | 26/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997 | CA-00056321-003 | 26/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00056321-005 | 26/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00056321-006 | 26/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00056321-007 | 26/04/2023 |
Date of Adjudication Hearing: 21/09/2023
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised.
Prior the adjudication hearing the Complainant made an application for the Adjudication Officer’s decision in this case be anonymised in its published form. This application was grounded on the fact that if the service users identify their local Community Centre and/or names of people who they have dealt with, in the current WRC dispute, it is likely to detract from their faith in this system. The Complainant asserted that this could impact the ongoing growth and development of the local community’s engagement with their local Community Centre Services and Adult Education.
The Respondent did not object to anonymisation of the decision.
In this regard, Section 41 of the Workplace Relations Act provides that;-
“(13)Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.
(14)
(a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.
(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.”
Section 8(6) of the Unfair Dismissals Act provides that;-
“(6) Proceedings under this section before an adjudication officer shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”
The WRC’s guidance note in relation to the matter, provides a non-exhaustive list of matters that may result in a written decision being anonymised. In this regard it is noted that the grounds cited by the Complainant do not fall under the same. It is further noted that the guidance note states that;-
“Following the Supreme Court’s rulings in this area, it should be noted that the fact that the parties both consider that there are ‘special circumstances’ or that an individual or company’s reputation might be impacted by having an employment or equality complaint ventilated in public does not automatically constitute a reason for the hearing to be heard in private.”
Having considered that Complainant’s application and the reason put forward, I find that it does not constitute ‘special circumstances’ within the meaning of Section 41 of the Act.
The parties are named in the heading of the decision. For ease of reference, the generic terms of Complainant and Respondent are used throughout the text and the Respondent’s employees are referred to by their job titles.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. The legal perils of committing perjury were explained. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
Background:
The Complainant referred her first claim to the Director General of the WRC pursuant to the Unfair Dismissals Act, 1977 on 29 October 2022 alleging that she was unfairly dismissed. The Complainant referred six further claims, as listed above, to the Director General of the WRC on 26 April 2023.
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Preliminary matter: time limits
Following the receipt of the Complainant’s first complaint, the WRC wrote to the Complainant on 15 December 2022. The Complainant was informed that it would appear from the information submitted by her that her complaint did not fall within the 6-month statutory timeline. The Complainant was further informed that, should she consider that her complaint was presented within 6 months or that the failure to present the complaint within 6 months was due to reasonable cause, she may make a submission accordingly to the WRC within 14 days of the date of the letter.
No reply was received from the Complainant to the letter of 15 December 2022.
The Complainant referred further claims to the Director General on 26 April 2023. She also emailed the WRC apologising for her submission being over the time limit. She stated in her email that “[t]his has been due to health issues of Long Covid and Stress, which has caused significant difficulty in revisiting and processing these matters.”
The Complainant sent a further email to the WRC on 28 April 2023 stating as follows:
“I also apologise for my complaints being outside of the 6 month time frame, as within that time, I suffered with extreme stress after the poor treatment and got Covid, being subsequently diagnosed with Long Covid. As my complaints are within 12 months, and resolving them would enable me to apply for similar employment, I hope you can consider them.”
The parties were invited to present their submissions regarding the time limits at the outset of the hearing. Thereafter, the parties’ submissions and evidence regarding the substantive matters were heard.
In circumstances whereby the preliminary matter of time limits may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. It was indicated to the parties that I would hear submissions on the preliminary matter and reserve my position on same. In the event that the preliminary issue is found for the Complainant and the extension of time is granted, then decisions on the substantive matters will follow. In the event the preliminary issue is found against the Complainant, then I am precluded from considering the substantive case. |
Summary of Complainant’s case regarding preliminary matter:
Regarding the preliminary matter of time limits the Complainant submits that she tried to get in touch with the Respondent as she was hoping to resolve the matter. She thought that the Respondent would acknowledge the work she had done.
She also said that in or around August 2022 she fell ill with Covid-19 and was unwell for some two weeks. She said that she suffered from long-Covid and she was depressed as part of long-Covid thereafter. No documentary evidence was available in that regard.
The Complainant said that it was around August 2022 that she thought she should take an action, but she got ill. She said that it was around that time that she was in contact with the Citizens Information Bureau. She was told to send her complaint to the WRC “straight away”. The Complainant further said that she also spoke with someone in the WRC “a day or two” before she submitted her claim. The Complainant said that she was well enough to make phone calls but she was “pretty unwell”.
The Complainant said further that she was not aware of the urgency.
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Summary of Respondent’s case regarding preliminary matter:
The Respondent did not object to the extension of time if it is deemed that the Complainant had a valid reason for the delay. |
Findings and Conclusions regarding preliminary matter of time limits:
The first matter I must decide is if I have jurisdiction to hear these complaints. 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: ‘(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.’ and in Section 8(2) of the Unfair Dismissals Act which provides that: ‘(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—
(a) within the period of 6 months beginning on the date of the relevant dismissal, or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,’
The parties confirmed at the adjudication hearing that the Complainant’s employment with the Respondent ceased on 29 April 2022. The six-month time limit within which the initiating complaint should have been referred to the Workplace Relations Commission expired on 28 October 2022. The Complainant referred her first claim to the WRC on 29 October 2022 and the subsequent claims on 26 April 2023. The Complainant, therefore, lodged her complaints out of time. Section 41(8) of the Act of 2015 provides, in effect, that the time for presenting a claim may be extended for reasonable cause shown for a further period of six-month but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. ‘(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.’ Similarly, section 8(2)(b) of the Unfair Dismissals Act 1977 gives the Adjudication Officer the power to extend time for “reasonable cause”. In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay. The jurisprudence in respect of the concept of ‘reasonable cause’ is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated: ‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338CementationSkanska (Formerly Kvaerner Cementation) v Carroll. 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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36. The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. (as he then was) stated as follows: The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint 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. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.” The Labour Court also held in Cementation Skanska that the length of the delay should also be taken into account. A short delay might only require a “slight explanation” (see Quality Irish Stoves Ltd v Hughes DWT 127/2013) whereas a long delay might require “more cogent reasons”. Even where “reasonable cause” was shown, the Court determined that it should still consider if it was appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. I note the Complainant confirmed in her evidence that she raised her issues with the Respondent and was hoping to resolve the matter. She further said that she was in contact with the Citizens Information office in or around August 2022 and that she was advised to submit her claim “straight away”. While the Complainant asserted that she suffered from Covid-19 at some stage around August 2022 and thereafter with long-Covid and depression, no evidence to support this statement was made available to me. I find that the Complainant has not shown reasonable cause to empower me to extend the time limit for the submission of complaints under the Workplace Relations Act, 2015 and the Unfair Dismissals Act, 1977. Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate these complaints. |
CA-00053475-002 under Section 8 of the Unfair Dismissals Act, 1977
Summary of Respondent’s Case:
The Respondent rejects the claim and submits that the Complainant was a participant in a Community Employment Project on a 12-month fixed-term contract. |
Summary of Complainant’s Case:
The Complainant submits that she was unfairly dismissed by the Respondent and seeks compensation. |
Findings and Conclusions:
Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit and has failed to establish reasonable cause for the delay. Therefore, I conclude that I do not have jurisdiction to hear the within complaint. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I do not have jurisdiction to hear the within complaint. I find that this complaint is not well founded. |
CA-00056321-001 under Section 8 of the Unfair Dismissals Act, 1977
Summary of Respondent’s Case:
The Respondent rejects the claim and submits that the Complainant was a participant in a Community Employment Project on a 12-month fixed-term contract. |
Summary of Complainant’s Case:
The Complainant submits that she was unfairly dismissed by the Respondent and seeks compensation. |
Findings and Conclusions:
Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit and has failed to establish reasonable cause for the delay. Therefore, I conclude that I do not have jurisdiction to hear the within complaint. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I do not have jurisdiction to hear the within complaint. I find that this complaint is not well founded. |
CA-00056321-002 under section 27 of the Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The Complainant submits that she did not receive her paid annual leave entitlements. |
Summary of Respondent’s Case:
The Respondent rejects the claim. |
Findings and Conclusions:
Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit and has failed to establish reasonable cause for the delay. Therefore, I conclude that I do not have jurisdiction to hear the within complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not have jurisdiction to hear the within complaint. I declare that this complaint is not well founded. |
CA-00056321-003 under Section 18A of the Organisation of Working Time Act, 1997
Summary of Complainant’s Case:
The Complainant submits that she was not placed on the appropriate band of hours. |
Summary of Respondent’s Case:
The Respondent rejects the claim. |
Findings and Conclusions:
Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit and has failed to establish reasonable cause for the delay. Therefore, I conclude that I do not have jurisdiction to hear the within complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not have jurisdiction to hear the within complaint. I declare that this complaint is not well founded. |
CA-00056321-005 under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Summary of Complainant’s Case:
The Complainant submits that she did not receive her statutory minimum period of notice on the termination of her employment or payment in lieu thereof. |
Summary of Respondent’s Case:
The Respondent rejects the claim. |
Findings and Conclusions:
Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit and has failed to establish reasonable cause for the delay. Therefore, I conclude that I do not have jurisdiction to hear the within complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not have jurisdiction to hear the within complaint. I declare that this complaint is not well founded. |
CA-00056321-006 under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003
Summary of Complainant’s Case:
The Complainant submits that the Respondent failed to inform her, as a fixed-term employee, of opportunities for permanent employment and /or appropriate training. |
Summary of Respondent’s Case:
The Respondent rejects the claim. |
Findings and Conclusions:
Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit and has failed to establish reasonable cause for the delay. Therefore, I conclude that I do not have jurisdiction to hear the within complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not have jurisdiction to hear the within complaint. I declare that this complaint is not well founded. |
CA-00056321-007 under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001
Summary of Complainant’s Case:
The Complainant submits that she, as a part-time employee, has been treated less favourably by the Respondent than a comparable full-time employee. |
Summary of Respondent’s Case:
The Respondent rejects the claim. |
Findings and Conclusions:
Having carefully considered all evidence available to me, I find that the Complainant has failed to submit her complaint within the required time limit and has failed to establish reasonable cause for the delay. Therefore, I conclude that I do not have jurisdiction to hear the within complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I do not have jurisdiction to hear the within complaint. I declare that this complaint is not well founded. |
Dated: 14/12/2024
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Key Words:
Out of time – time limits |