Complainant

Respondent

Parties

Aurica  Foiu

Arunas Bursevicius Netpol

Representatives

Marius Marosan

Act

Complaint 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-00050309-003

04/05/2022

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

CA-00050309-004

04/05/2022

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

CA-00050309-006

04/05/2022

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

CA-00050309-007

04/05/2022

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

CA-00050309-008

04/05/2022

The complainant has submitted five complaints, two of these under the Organisation of Working Time Act, 1997, two others under the Terms of Employment (Information) Act 1994 and a complaint of constructive unfair dismissal.

The complainant terminated her employment on October 17th, 2021, and submitted her complaint to the WRC on May 4, 2022, some six and a half months later.

Therefore, a preliminary question arises as to whether the complaints have been made within the statutory timeframe, or whether she has established grounds to enable the six-month limit to be extended to twelve months.

In explaining the delay, the complainant’s representative explained that she could not get the documents from the respondent  that she required to make a complaint.

The complainant give evidence on affirmation through an interpreter who also affirmed.

In her direct evidence she said that she had submitted all the relevant material to her solicitor and at the same time a WRC inspection was taking place. She gave evidence that she never received any payslips even though these were prepared subsequently solely  for the purposes of the inspection.

She said her average hours were fifty-five per week and that she had not been given any paid holidays in 2020 or 2021, nor was she given any leave in respect of public holidays.

Regarding her terms of employment, she said that she never received any document on commencing her employment or at any time subsequently.

In respect of the complaint of constructive unfair dismissal and the steps taken by her to raise the issues she said that she had complained about the excessive hours she worked and about mistreatment by the employer.

She said he regularly used racist and abusive language and did so in front of witnesses.

The final straw came when she contacted the respondent to look for wages to be paid but he laughed at her and again used abusive language telling her that she could leave the job if she wished.

Ms Zara Natalia give evidence on affirmation.

She confirmed that abusive language was used by the employer and agreed with the evidence already given by the complainant. She said the situation worsened towards the end of the complainant’s employment.

In summary the complainant submitted that she had worked in excess of the legal hours, was paid cash in hand without being given payslips, was the subject of verbal abuse and regular breaches of her entitlement to dignity at work.

The respondent did not attend the hearing and no explanation was given for his failure to do so.

The complainant gave very persuasive and credible evidence of the conditions she had to endure in the course of her employment although it is important to note that the respondent did not attend or provide any submission to challenge her account.

However, as noted above the key obstacle to the complainant’s cause is that her complaint was made on May 4th, 2022, some six and a half months after the termination of her employment on October 17th, 2021, and therefore a matter of a couple of weeks outside the six-month period for the making of a complaint.

The test to be applied in relation to extension of time applications under the Acts, is that formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and in other cases. It can be summarised as the ‘Explain and Excuse’ test; and as will be seen below, both elements are required as the following illustrates.

“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 length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said in Department of Finance v IMPACT. [2005] E.L.R. 6.  that it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one, but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

The complainant offered a number of explanations for the delay in this case.

The first was somewhat unspecific and based on an apparent failure of the legal representative (not the one acting for her at the hearing) had failed to act to process her complaint.

The second explanation was that she had been awaiting information arising from the inspection in order to make a complaint.

Regrettably for her neither of these explanations falls within the test set out above. In respect of the first it was somewhat unconvincing, and no real evidence was offered to support it. I do not consider the delay to be a ‘short’ delay as referred to by the Court; in my view this refers to a matter of days only.

In respect of the second, which is a common enough explanation offered in this context, it is important to note that no supporting documentation is required to make a complaint to the WRC.

This only arises at the point when a submission is being made for the purposes of the hearing, but once the complainant has a grievance in respect of an alleged breach of employment statute there is no restriction on the making a complaint at that stage, and doing so in the most general terms.

Specifically, there is no requirement to produce supporting information at that point.

Accordingly, this too is insufficient to meet the ‘Explain and Excuse’ test.

There was also reference in earlier correspondence from her former solicitor to a close family bereavement. However, this had taken place on February 10th, 2022, leaving plenty of time to submit her complaint within the required timeframe.

For that reason, I conclude that the complaints have not been made within the statutory time limits and without reasonable cause, and for that reason they are not within jurisdiction.

Accordingly, complaints CA-00050309-003, 004, 006, 007 and 008 are not well founded.

For the reasons set out above, complaints CA-00050309-003, 004, 006, 007 and 008 are not well founded.

Time Limits