Complainant

Respondent

Parties

Kevin  Farrell

Bus Eireann

Representatives

Mr. Thomas O'Connor, National Bus & Rail Union

Self-Represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00040394-001

13/10/2020

The Complainant initially commenced employment with the Respondent on 3rd July 2017. The Complainant was a seasonal worker, and was engaged for the summer months of 2017, 2018 & 2019. The Complainant was further engaged on a short-term contract from 13th December 2019 to 29th February 2020.

On 13th October 2020, 7 months and 14 days following his last day of employment, the Complainant referred the present complaint to the Commission. Herein, he alleged that he treated less favorably than comparable permanent employees. In particular, the Complaint alleged that he was not provided with adequate uniforms, was given less favorable routes and was progressed to a full-time contract in accordance with an existing custom and practice. In denying these allegations, the Respondent stated that the Complainant was treated fairly at all times and that he suffered no unfavorable treatment on foot of his employment status.

A hearing in relation to this matter was convened for, and finliased on 23rd August 2022. At the outset of the hearing the Adjudicator raised a preliminary issue as to the Complainant’s jurisdiction to bring the complaint as constituted. As this matter is potentially determinative of the entire proceedings, it will be considered in advance of the substantive matter.

At the outset of the hearing, the Adjudicator raised the issue of the complaint being potentially out of time. Whilst many of the allegations raised by the Complainant relate to matters that occurred some years prior to the referral of the complaint, the Complainant’s last day of employment, and the last day of any potential breach of the Act was 29th February 2020. In circumstances whereby the complaint was referred on 13th October 2020, it is apparent that the matter was referred in excess of six months from the last possible date of contravention.

By response to the same, the Complainant submitted that this matter was the subject of local discussions prior to the referral of the complaint. The Complainant’s representative submitted that they wished to exhaust all internal mechanisms prior to referring the matter to a third party forum. In this regard, numerous correspondences between the parties were opened in respect of the same.

The Respondent made no submission as to the preliminary issue at hand but indicated that they were fully prepared to defend the complaint on the substantive issue.

Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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.”

Section 6(8) provides that,

“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.”

The test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. 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 the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It 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. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

In the present case, the Complainant made an oral application for an extension of time based on the fact that the subject matter of this complaint was discussed at local level. When these discussions did not resolve the issue, the Complainant referred the present complaint as a last resort.

In the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that,

“…a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”

From the authorities cited above, it is clear that the Complainant must firstly explain the reason for the delay. In this regard, I find that the rationale advanced by the Complainant does not adequately explain the delay. If the matter was subject of local discussions, clearly the complaint was aware of the issue and had no barrier to submitting his own personal complaint in good time.

Having regard to the foregoing, I find that the Complainant has failed to demonstrate “reasonable cause” as required by the Act. As a consequence of the same, I find that no contravention of the impleaded legislation occurred within the relevant time-frame and the complaint is not well-founded.

I find that no contravention of the impleaded legislation occurred within the relevant time-frame and the complaint is not well-founded.

Reasonable Cause, Time Extension, Local Discussions