Complainant

Respondent

Parties

Seamus Hayes

EIR

Representatives

Jacqueline Ho Eir Legal Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00047868-001

23/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00047868-002

23/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00047868-003

23/12/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00047868-004

23/12/2021

A complaint form was received by the WRC on 23 December 2021. An in-person hearing of the case took place on 13 December 2022.

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

At the outset of the hearing the Complainant withdrew CA-00047868-002, a complaint under the Employment Equality Act, 1998.

The Respondent submits that each of the Complainant’s complaints are wholly or partially presented outside the appropriate legislative time limits.

By way of background, the Respondent submits that the Complainant transferred from his original employer to the Respondent, following a transfer of undertakings which took place in February 2019. In October 2019, the Complainant voluntarily elected to transfer his original contractual terms to the Respondent’s Contract of Employment.  The Complainant reached the Respondent’s normal retirement age (his 65 birthday) on 2 July 2020.  Prior to his retirement the Complainant requested that he be permitted to work past the normal retirement age. Following consultation, the Respondent agreed, on an exceptional discretionary basis, to offer the Complainant a 12-month Fixed Term Contract commencing on 1 July 2020. It was a term of the Fixed Term Contract that the offer of the extended period of employment was in full and final settlement of all claims arising by the date of signing. The Complainant agreed to this term and had the benefit of union representation during the consultation process.  The Complainant then took up the offer of the 12-month fixed term contract and at the conclusion of that contract his employment terminated as agreed on 2 July 2021.

The Respondent submits that any complaint or issue raised in respect of the cessation of the Complainant’s permanent employment and the negotiation and/or agreement of the 12-month fixed term contract took place prior to 7 July 2021, and so occurred almost 18 months prior to the submission of the Complainant’s within complaint (which is dated 22 December 2021).  It is further noted that the transfer of undertaking between the Complainant’s original employer and the Respondent occurred on 4 February 2029 and that the Complainant voluntarily elected to transfer from his original employer’s terms and conditions of employment to the Respondent’s terms and conditions on 29 October 2019. The Respondent submits that these matters occurred several years prior to the presentation of the within complaint.

The Respondent submits that as the within complaint was submitted on 22 December 2021, the Adjudication Officer ought solely to be concerned with those aspects of the Complainant’s complaint which took place on or after 22 June 2021.

In response to the Respondent’s argument that the within complaints were out of time, the Complainant stated that his initial contract with the Respondent was not correct.

The Complainant did not put forward any reasonable cause to explain his delay in submitting his complaints.

CA-00047868-001 complaint under the Unfair Dismissal Act, 1977.

Section 8 of the Unfair Dismissals Act states:

(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,

In relation to CA-00047868-001, I find that the Complainant’s employment with the Respondent ceased on 30 June 2020, the day before he commenced the 12-month Fixed Term Contract with the Respondent. As the within complaint was received by the WRC on 21 December 2021, it is well over the time limit allowed for the submission of such a complaint. No reasonable cause was put forward by the Complainant to explain the delay in submitting the complaint, therefore I find this complaint is out of time, and I do not have jurisdiction to hear it.

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.

The Complainant’s claim is statute barred. I do not have jurisdiction to hear the matter.

CA-00047868-003 & 004 Complaints under, the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

Section 41 of the Workplace Relations Act 2015 states:

41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1or 2of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

Section 41(6) of the Act states

(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 insubsection (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.

In Labour Court Determination DWT0338Cementation Skanska (Formerly Kvaerner Cementation) v Carroll the test for extending time 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 relation to CAs 00047868- 003 & 004, I find that the transfer of undertakings took place in 2019.As the within complaints were received by the WRC on 21 December 2021, it is well over the time limit allowed for the submission of such complaints. No reasonable cause was put forward by the Complainant to explain the delay in submitting the complaints, therefore I find these complaints are out of time, and I do not have jurisdiction to hear them.

CA-00047868-003

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant’s claim is statute barred. I do not have jurisdiction to hear the matter.

CA-00047868-004

Decision

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

The Complainant’s claim is statute barred. I do not have jurisdiction to hear the matter.

Out of Time, reasonable cause.