Complainant

Respondent

Parties

Arkadiusz  Brzezinski

Aronmar Plant Limited

Representatives

David Hand BL instructed by  Eamonn Hayes Solicitors

 Michael O’Connor

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-00057290-001

21/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00057290-002

21/06/2023

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

CA-00057290-003

21/06/2023

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

CA-00057290-004

21/06/2023

The Complaint was received by the Workplace Relation Commission on 21 June 2023.

The Complainant swore an affirmation and presented legal submissions.

The Office Manager from the Respondent joined the hearing 30 minutes late without reasonable excuse. No documentary evidence or submissions were provided by the Respondent. Mr. O’Connor swore an affirmation.

A preliminary point was raised in relation to the time limits of the complaints.

The parties confirmed the Complainant commenced employment on 30 May 2019 and his employment ended on 30 June 2022.

Preliminary Point:

The Complainant stated that he did not receive a contract of employment and, as a consequence, was not aware of his employment rights. It was submitted that English is not his first language and that he was in a vulnerable position.

It was further submitted that after a break, following an accident in the workplace, he returned to Poland for treatment. Upon his return, he sought advice and it later became apparent that he had grounds for complaints. The Complaint Form was subsequently filed.

Legal submissions were made on behalf of the Complainant.

Substantive Claims:

The Complainant’s evidence indicated that he worked 6 days a week, in excess of 48 hours per week, with clear and detailed documentary evidence presented. He stated that he was not paid a Sunday premium, nor was he given any statement of his terms and conditions of employment.

Preliminary Point

Mr. O'Connor represented the Respondent and stated that the Complainant's English was goodand he had no issue communicating with his colleagues. He provided evidence that as a foreman, he was responsible for the team's working days.

Mr. O'Connor's evidence suggested that the Complainant had engaged with his solicitor within the 6-month period and, therefore, his case should not proceed. Mr. O'Connor could not identify any prejudice suffered by the Complainant due to the delay in submitting the complaint.

Substantive Claims:

The Respondent acknowledged that the Complainant was not given a contract of employment. Regarding the Sunday premium, he confirmed that the Complainant was not paid anything additional, but it was "rare" for him to be asked to work on Sundays. Mr. O'Connor's evidence indicated that the Complainant was paid for the hours he worked and, as the foreman, was responsible for managing those hours.

Preliminary Point

It is first necessary to decide on whether the Complainant meets the test for an extension of time.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 (6 ) of the Workplace Relations Act 2015 : -

“(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 Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;

“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 test draw 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.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.

In September 2022, the Complainant returned following medical treatment abroad and legal sought advice. After careful consideration and based on the facts and circumstances, it cannot be said that there is a causal link between these facts and the delay that could objectively satisfy me that there is reasonable cause for extending time. Consequently, I find that I do not have jurisdiction to hear this complaint.

CA-00057290-001

I do not have jurisdiction to hear this complaint.

CA-00057290-002

I do not have jurisdiction to hear this complaint.

CA-00057290-003

I do not have jurisdiction to hear this complaint.

CA-00057290-004

I do not have jurisdiction to hear this complaint.