ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00044422

Parties:

Complaint(s):

Date of Adjudication Hearing:  13/10/2023

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.

The issue of anonymisation in the published finding of the WRC was considered but as no major reasoning was advanced the Complaint will not be anonymised.

Background:

1:        Opening Issue – Time Limits

1:1        The Respondent pointed to the fact that the Complaint was lodged at the WRC on the 1st March 2023 -this being in excess of six months from the date of resignation. Accordingly, under Section 8 (2) (a) of the Unfair Dismissals Act,1977 the Complaint is “out of time”.

A six-month extension is allowable, on the decision of the Adjudication Officer if grounds of “Reasonable Cause” are presented by the Complainant.

1:2       The Complainant, who had submitted extensive written submissions, pleaded in oral Testimony that he had delayed making his complaint due to anxiety and distress post the resignation.  He had needed time to “Get back on his feet”.

1:3       Adjudication View.

Section 8 (2) (a) of the unfair Dismissals Act,1977 and the closely related Section 41 (6) of the Workplace Relations Act,2015 establish a time limit of six months for lodging Complaints. This is statute Law enacted for the good administration and efficient management of, in this case, Unfair Dismissal Complaints.

The granting of a further six-month extension, as allowed for in Section 8(2) (b) and Section 41 (8) of the Workplace Relations Act,2015 is not an issue to be taken lightly. The Labour Court, in what has become a landmark decision – Skanska (Formerly Kvaerner Cementation) v Caroll WT CO338 stated that

“It is for the claimant to show that there are reasons which both explain the delay and afford an excuse for 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 this case the Complainant was clearly very competent in his affairs. His submissions are lengthy and well argued. It would stretch credibility to suggest that the issue of the time limit was not clearly understood.

The reasoning offered to justify an extension of six months – suggesting “stress as a result of the Resignation” is not really persuasive in an Adjudication context.

In the period between Resignation and the lodging of the WRC complaint a very substantive written submission supported by extensive documents was prepared. It may have been stressful to prepare the submission but not such as to miss the required deadlines. The Complainant was clearly of the capacity to handle extensive evidence and documentation.

The question raised of the alleged delays in the DSAR requests/replies was considered in An Operative V a Security/CIT Company Adj 00025245 where the decision was not to accept DSAR delays as an acceptable excuse. This would also appear to be the case here.

On balance therefore the Adjudication decision has to be that the complaint is “Out of Time” and cannot proceed. No “Reasonable Cause” for an Extension of time was presented.

2:        Findings and Conclusions:

3:        Decision:

CA-00055338-001

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.

The Complaint was lodged outside of the Six-Month time limit as provided for in Section 8(2) of the Unfair Dismissals Act.

Accordingly, it is not properly founded and cannot proceed.

The complaint is dismissed.

Dated:   18th December 2023

Workplace Relations Commission Adjudication Officer:  Michael McEntee

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