Complainant

Respondent

Parties

Jozef  Radic

GSLS

Representatives

Martin Lambe

Anne O'Connell AOC solicitors

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-00051673-001

12/07/2022

The complainant submitted a claim under Section 8 of the Unfair Dismissals Act, 1977, on the 12th of July 2022 therefore the cognizable time period of the complaint dates from the 13th of January 2022 to the 12th of July 2022.  

The complainant’s employment terminated on 4th of August 2021.

The Respondent submits that

this claim is statute barred as the Complainant was dismissed with effect from 4 August 2021, but the Complaint Form was not lodged until 13 July 2022, which is outside the prescribed six-month time limit.

The Complainant did not seek an extension of the time limit until 25 October 2022, being over 14 months after his dismissal.

The Respondent submits that the basis for seeking an extension of time does not amount to reasonable cause preventing the Complainant from lodging the Complaint Form within the six-month period.

Without prejudice to the above, the Respondent rejects the above claim and submits that the Complainant’s dismissal was in line with fair procedures and the sanction was proportionate in the circumstances.

The Complainant submits that

he was employed by the Respondent from the 14 June 2016 as a Cash-In-Transit driver

On 25 March 2021, three bags of coins amounting to €2,000 went missing from the Complainant’s run.   An investigation was initiated by the Respondent and the Investigator spoke with the Complainant, another driver, and an employee in the warehouse.

The Respondent initially thought that the missing money was due to an error on the part of a third party. 

 The investigation was put on hold awaiting a copy of the CCTV footage from the third party of the Complainant’s delivery to their store.   The investigation resumed on 28 June 2021 during which the Complainant and the Investigator viewed the CCTV footage together.

On 5 July 2021 the Respondent wrote to the Complainant inviting him to a disciplinary on 3 August 2021.

The Complainant was notified by letter on the 4 August 2021 that his employment was being terminated effective immediately on the basis of gross misconduct.    The Complainant was advised that his appeal would be heard on 3 September 2021.

On the day of the appeal hearing the complainant felt like he had Covid symptoms and did not attend but sent his representative Mr. Lambe in his place.

The appeal did not go ahead as the respondent told him the meeting would not be taking place without the complainant’s attendance

The complainant disputes that his attendance was necessary and says that company procedure does not require an employee to attend his own appeal hearing.  No further meeting took place, and the appeal was decided in his absence.

It was confirmed to the Complainant by letter dated 15 October 2021 that the disciplinary decision is upheld, and his dismissal remains with effect from 4 August 2022.

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”.

These provisions are mirrored in Section 8(2) of the Unfair Dismissals Acts, 1977 wherein it states that:

“(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”.

The Acts 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 submits that this claim is statute barred as the Complainant was dismissed with effect from 4 August 2021, but the Complaint Form was not lodged until 13 July 2022, 11 months after his dismissal which is outside of the prescribed six-month time limit.

In addition, the respondent submits that the complainant did not seek an extension of time until 25 October 2022, after the respondent raised the issue of time limits with the WRC and over 14 months after the complainant’s dismissal.

The complainant in response to this through his representative Mr. Lambe submitted that he was seeking an extension of the six-month time limit for a number of reasons, the first of which claimed that the complainant was never afforded an appeal as per his right, as the company insisted that the complainant himself was required to be in attendance as per their company handbook.

The respondent in replying to this advised that the Complainant was provided with sufficient opportunities to have his appeal heard and dealt with over a two-month period. The appeal was re-scheduled for the Complainant from 3 September to 7 September 2021, but the Complainant did not attend.  A further appeal hearing was arranged but the Complainant stated that he was sick with COVID. The appeal was further rescheduled, but the Complainant maintained that he would not be attending on any other occasion and argued that his representative was entitled to attend alone on his behalf to deal with the appeal.   The respondent advised that it was outlined on numerous occasions to the Complainant and his representative that the Complainant himself was required to attend his Appeal hearing as per the Disciplinary Procedure and that his representative could not appear alone on his behalf. The Complainant never attended the appeal hearings and the appeal had to be decided in his absence. The outcome was sent to the Complainant on 10 October 2021.

The second reason provided in support of the extension of time request was that additional information which would have supported the complainant’s complaint was not received until late January and that the complainant has still not received documentation which is relevant to the case.

The respondent submits that that this is insufficient reason for a delay in submitting a complaint to the WRC. The Complainant alleged above that he had “still not received documentation which is relevant to the case” as at 25 October 2022 but yet it did not prevent him from lodging the WRC Complaint Form in July 2022. The Complainant did not indicate what, if any, information he received after January 2022 and before July 2022 that changed his position and enabled him to lodge the WRC Complaint Form. Nevertheless, the Respondent submits that all information in relation to the investigation and disciplinary procedures were provided to the Complainant the process and all additional information and documents requested that related to the disciplinary process were provided to the Complainant in advance of the Disciplinary Appeal Outcome dated 10 October 2021.

No reason has been put forward as to why the Complainant waited 11 months following his termination date or indeed, 9 months following receipt of the disciplinary appeal outcome before lodging his claim with the WRC.

The complainant’s representative advised the hearing that they were not aware that there was a time limit for lodging claims with the WRC. 

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.”

I note in this case that the complaint was not a few days or weeks out of time but that it was submitted 11 months after the dismissal and 9 months following the disciplinary appeal outcome.

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.