Complainant

Respondent

Anonymised Parties

A Care Worker

A Provider of disability support services

Representatives

  Una Dunphy

 Aidan Phelan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00056954-001

01/06/2023

The complainant submitted a claim of Penalisation under Schedule 2 of the Protected Disclosures Act, 2014 on the 1st of June 2023 therefore the cognizable time period of the complaint dates from the 2nd of December 2022 to the 1st of June 2023. 

The complainant submits that

She was penalised for making disclosures during her time as an employee of the respondent to such an extent that she ultimately had no option but to resign her position for the sake of her mental health.

She submits that she made several disclosures to her former employer.  She was not protected by them from bullying and harassment suffered as a result of these disclosures.  

The respondent submits that

 the complaint falls outside the 6-month timeframe as the claim was submitted on 1st of June 2023 and the claimant’s resignation email was sent on 17/10/22 giving notice of her end date of 06/11/2022.

The complainant has already received a WRC decision on her claim for Unfair Dismissal This matter has been adjudicated and therefore may not be pursued further by the same parties.

The complainant is also not entitled to parallel claim in tort and has also lodged the same claim with the Personal Injuries Assessment Board (PIAB)

The respondent in prehearing submissions and at the hearing raised the issue of time limits submitting that the within claim was submitted outside of the 6-month time limit.     The complainant’s side in response to this stated that the very fact that the claim form was accepted by the WRC indicated that the claim was within time or that an extension had been granted. 

I advised the parties that it is a matter for the Adjudicator to make a decision on whether or not an extension of the time limits can be granted.    I gave both parties an opportunity to put forward their positions in respect of the time limits issue and advised that I would consider whether circumstances were such that an extension of the time limits should be granted.

I confirmed that I would reserve my position and consider this matter and if I was satisfied that circumstances existed which would warrant the granting of an extension of time then the case would be reconvened to allow the parties to give direct evidence on the substantive issues.   If it was clear that an extension of time could not be granted, then it would be unnecessary to hear the substantive issues and I would issue a decision in this regard.

Section 41 (6) and (8) of the Workplace Relations Act, 2015 states as follows

“(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.

(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”.

The Act allows for an initial timeframe of six months within which a complaint must be lodged. It also allows for an extension of a further six months where a person was prevented from doing so due to reasonable cause.  

The respondent advised the hearing that the complaint was out of time as the allegation related to the complainant’s employment with the respondent which had ended on 6 November 2022.

The complainant in support of her application for an extension of time advised the hearing that she had previously lodged a claim of Unfair dismissal on which a hearing had been held and a decision subsequently issued.  The complainant advised the hearing that she had at the time of her previous complaint been represented by a union official and had received bad advice as she was not advised that she could have raised a penalisation claim at that time of her original claim.    The complainant stated that she had since dispensed with the services of that representative and decided to proceed with the penalisation claim.    The complainant added that her current representative had made her aware that she could have pursued a penalisation claim. 

The complainant as a further reason for failing to submit her claim within the time limits stated that she had been under a lot of stress due to the bullying and harassment she had been subjected to while employed by the respondent. 

The respondent at the hearing in reply to this submitted that ignorance of the law is not an excuse for failing to submit a complaint on time and added that the issue of the complainant having received bad advice from a previous representative is a matter between the complainant and her representative.  The respondent added that the complainant’s employment with the respondent had ended on 6th of November 2022.

I note that this claim was submitted on 1st of June 2023 and that the complainant had resigned her employment with the respondent on 17 October 2022 with an end date of 6th November 2022.      I also note that the complainant has previously submitted a claim of unfair dismissal in respect of this employment on which a decision has issued.

The test for determining if an extension should be granted for reasonable cause was set out by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 38/2003 as follows:

 “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he/she would have initiated the claim in time.”

It is clear that the complaint in this case falls outside the period of six months.  The complainant has advanced a number of reasons to explain the delay.  I am satisfied that none of these reasons are within the parameters of ‘reasonable cause’. 

Consequently, I find that this complaint is out of time, and I declare the claim to be not well founded.

I find that this complaint is out of time, and I declare the claim to be not well founded.