Complainant

Respondent

Anonymised Parties

Employee

Employer (Transferor)

Representatives

Setanta Landers Hatstone (Ireland) LLP

Barry Walsh Fieldfisher

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-00042584-001

18/02/2021

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

CA-00042584-002

18/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042584-003

18/02/2021

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

CA-00042584-004

18/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042584-005

18/02/2021

The Complainant has submitted various overlapping complaints under the Transfer of Undertaking Regulations, the Unfair Dismissals Acts, the Employment Equality Acts, the Redundancy Payments Acts, the Payment of Wages Acts and the Terms of Employment (Information) Act. The matter in relation to the Employment Equality Acts has been withdrawn.

These Complaints have been submitted against the Respondent herein and the Transferee jointly and separately. For the avoidance of doubt and eliminating all the various duplications, the relevant matters to be dealt with are ADJ-00032149 (CA-00042584-001, CA-00042584-003, CA-00042584-004 and CA-00042584-005) and ADJ-32026 (CA-00042549-001, CA-00042549-003 and CA-00042549-004).

The Complainant was employed as a household support services assistant by the Respondent herein since September 2002 and has been on long term illness since 2017.

The Complainant submitted that whilst in correspondence with Irish Life in the summer of 2020 she was informed that her employment had transferred to the Respondent/Transferee (ADJ 32026) from the 18th February 2020.

On the 16th July 2020 the legal representatives of the Complainant wrote to the Respondent herein seeking details and documentation around the said transfer of employment and  in particular how her income payment  protection, which she was availing of, was to be treated under this new arrangement. A subsequent letter, seeking the same information, was issued on the 17th February 2021.

The Complainant submitted that she did not receive any formal notification from the Respondent until the 15th September 2020 of the transfer of her employment on the 18th February 2020 pursuant to WRC Agreement C-164941-20.

The Complainant submitted that in the absence of any engagement from either Transferor or Transferee she was forced to file protective claims before the statute expired. The Complainant set out the circumstances as per correspondence with the  WRC on the 17th February 2021.

The Complainant submitted that she has demonstrated reasonable cause for the extension of time where she had not received any response to her enquiries from the Respondent or the Transferee,  she had an ongoing long term illness and this was also within the time period of the pandemic. Further, the Complainant submitted that the date of actual knowledge of the transfer was the 15th September 2020 and at that point the six month time period began to run for the lodging of said complaint.

The Complainant provide written submissions at the commencement of the hearing of this matter on the 23rd May 2022.

These Complaints were received by the Workplace Relations Commission on the 18th February 2021

The Respondents provided written submissions on the 17th May 2022 in relation to the substantive complaint  but  also raised preliminary objections to this matter proceeding to hearing and submitted that these matters were statute barred. The Respondent provided supplementary submissions on the 17th June 2022 following receipt of the Complainants submissions on the 23rd May 2022.

The Respondent submitted that the Complainant and her colleagues in the Household Department were first on notice of a possible outsourcing of the activity in 2017 and a due diligence exercise in that regard was conducted in 2018. In June 2019 the Complainant and her colleagues under the Respondents Household Department were notified of the intention to transfer the functions of the Household Department to the Transferor

The Respondent submitted a process of extensive consultation commenced which resulted in a collective agreement with the Complainants union relating to the transfer under the Transfer Regulations. This transfer included a €3,000.00 transfer payment to the Complainant. Accordingly, the Complainants role transferred by operation of law to the Transferor on the 18th February 2020.

In the Respondents supplementary submissions, the Respondent states that these Complaints are statute barred and the Complainant has not established any reasonable cause for the extension of time pursuant to statute. The Respondent submitted that as the Complainants employment transferred on the 18th February 2020 any claims against the Respondent can only run from that date and any attempt by the Complainant to say that any breach by the Respondent occurred at a later date is factually and legally unsound. The Respondent was no longer the Complainants employer after the 18th February 2020. Further, the Complainant was not employed by the Respondent on the 15th September 2020 and therefore could not have been dismissed on that date as alleged by the Complainant.

The Respondent submitted that the burden of proof is on the Complainant to demonstrate that reasonable cause applies and that there are reasons which both explain and afford the delay. In that regard, the Respondent relied on the case of Cementation Skanska and Carroll DWT0338 (which will be discussed later).

The Respondent submitted  it is disputed that the Complainant only became aware of the transfer  on the 15th September 2020 and  any cause of action runs from the date of the alleged breach and not from the awareness of the breach.  

The Respondent submitted that the Complainant has failed to demonstrate any reasonable cause for the failure to submit these complaints within the requisite time period. Further,  and without prejudice to the aforementioned preliminary objection, it is the Respondents position that the Complainants substantive claim is entirely without merit.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties. 

In relation to the preliminary objection that these matters  are statute barred, it is necessary to examine the facts giving rise to these Complaints in light of the relevant legislative provisions. In that regard, Sections 41 (6) of the Workplace Relations Act 2015 provides:

(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.

and Section 41(8) states:

(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.

In relation to “reasonable cause” the Labour Court set out the test in Cementation Skanska -v- Carroll DWT 38/203 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.”

Each case will turn on its own particular facts and in this instant case, it will be necessary to (i) explain the delay and (ii) afford an excuse for the delay.

The Complainant accepts that she had not lodged her Complaint within the six month time frame but was relying on the aforesaid provision of Section 41(8) as she has submitted that her actual knowledge of the transfer of her employment was the 15th September 2020. Further, the Complainant is an individual who has severe health issues, which is accepted, and was on long term sickness leave and was availing of long term income payment protection. The Complainant set out this position as per her legal representatives correspondence to the WRC on the 17th February 2021.

However, the Complainant legal representative wrote to the Respondent on the 16th July 2020 and expressly stated “We are informed that [the Complainant] has transferred to the [Transferee] with effect from the 18th February 2020.” In the circumstances of this case, I am satisfied that the Complainant was aware of the facts and circumstances of her transfer of her employment on or before the 16th July 2020 and  to suggest that her actual knowledge of her transfer was the 15th September 2020 is not accepted.

Further, the Complainant was able to retain and instruct her solicitors to correspond with the Respondent in relation to transfer of employment but did not lodge any complaint with the WRC until February 2021. In that regard the case of A Company -v- A Worker UDD2232 is relevant wherein it was held that the Complainant was capable of dealing with other matters and it was necessary for him to demonstrate that there was some factor that prevented him from submitting an unfair dismissal claim within the six month time frame. The Labour Court deemed his Complaint was out of time. In the circumstances of this matter, the Complainant has not provided any evidence that there were other factors that prevented these matters being submitted within the appropriate time period.

In relation to this preliminary objection, I am therefore satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time and accordingly these Complaints are not well founded.

I find that the Complaint (CA-00042584-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977 is not well founded.

I find that the Complaint (CA-00042584-003) made pursuant to Section 39 of the Redundancy Payments Act, 1967 is not well founded.

I find that the Complaint (CA-00042584-004) made pursuant to Section 7 of the Terms of Employment (Information) Act, 1994  is not well founded.

I find that the Complaint (CA-00042584-005) made pursuant to Section 6 of the Payment of Wages Act, 1991 is not well founded.

Time Limits