Complainant

Respondent

Parties

Loui  Osman

Fyffes Tropical Ireland Ltd

Representatives

Rosemary Mallon BL instructed by McInnes Dunne Murphy LLP

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-00052739-001

10/09/2022

The Complainant was employed as an IT Analyst with the Respondent from 1 December 2018 and was paid €3,787.50 per month. On 10 March 2022, his employment was terminated on misconduct grounds, which he asserts was unfair.

The Complainant stated, in the first instance, that the investigation processes that ultimately culminated in his dismissal were deficient. He also asserted that the disciplinary procedures were applied in such a way as to remove him from his employment, rather than identifying performance gaps and attempting to address them through training and development. Additionally, he claimed that there was no structured support or system in place for his role, which resulted in him being unfairly treated.

The Respondent stated that the Complainant had a history of poor conduct while employed with them. In the first instance, it was highlighted that he received a written warning on 16 February 2021 concerning inappropriate behaviour. Additionally, he was issued a final written warning on 1 November 2021 for other conduct issues. Subsequently, he was dismissed on 10 March 2022 due to further inappropriate behaviour.

The Respondent emphasised that procedural fairness was afforded to the Complainant throughout the disciplinary process, and that he took advantage of the opportunity to appeal each of the disciplinary sanctions imposed.

The Law:

Section 8(2)(a) of the Unfair Dismissals Acts provides that:

“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 (…)”

Section 17 (8) of the Act of 2015 states:

“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 the period was due to reasonable cause”.

Findings

Although the Complainant’s date of dismissal was 10 March 2022, he did not refer the instant complaint to the WRC until 22 35 hrs on 10 September 2022. For the complaint to have been instituted in the required 6-month period, the Complainant would have had to initiate same on or before 9 September 2022.  

While I recognise that I can provide for an extension of time up to 12 months from the date of contravention, where reasonable cause is shown by the Complainant, the Respondent highlighted the Labour Court case of Hewlett-Packard Ireland Limited v. Jakub Zajaczkowski (DWT 191) where it was held that:  

“The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.Here the test 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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should be enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Courtin Minister for Finance v CPSU & Ors [2007] 18 ELR 36. 

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court inDonal 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. 

It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.” 

Considering the foregoing and in the absence of any justifiable excuse for the delay in the referral of the complaint having been presented to me, I find that I do not have jurisdiction to hear the matter.

I find that I do not have jurisdiction to hear the complaint for the reasons set out above.