Complainant

Respondent

Parties

Ionela - Adina  Iacobuta

Framewell Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00046917-001

29/10/2021

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

CA-00046917-003

29/10/2021

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

CA-00046917-005

29/10/2021

The Complainant stated that the date of contravention in relation to all of the complaints CA 46917 -01, 46917 -05 and 46917 -05  occurred in March 2020. The complaints were not filed until 29th October 2022.

The Complainant accepts that she did not file her complaints until October 2022 and that contravention leading to the filing of the complaints occurred in March 2020 at the start of the pandemic. She stated that she was in hospital for some period of time in early 2020 and had surgery. Following that she was depressed. She didn’t address the issue of the complaints until the latter part of 2022.

The Complainant stated that the date of contravention in relation to all of the complaints CA 46917 -01, 46917 -05 and 46917 -05 all occurred in March 2020. The complaints were not filed until 29th October 2022. The complaints are statute barred.

The Complainant commenced working for the Respondent in December 2018.  She carried out the role of housekeeping assistant. In March 2020 at the start of the pandemic and the first lock down, her hours were cut unilaterally. She wasn’t given written notice of this change. Furthermore, she states that at that time she was corresponding with the Respondent via email and she found the tone of the emails to be patronising and/or condescending. She felt that was because of her language difficulties. Those set of circumstances led her to file the above claims on 29th October 2022.

The preliminary issue to be determined is whether or not I have jurisdiction to hear the complaints. Section 41(6) Workplace Relations Act 2015 states “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 six months beginning on the date of the contravention to which the complaint relates. Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'.

Without prejudice to the above argument “reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “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 DWT0338 Cementation Skanska v Carroll.  Here the test was set out in the following term;

“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 of 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 had not been present he would have initiated the claim on time.”

In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should been 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 Court in Minister for Finance v CPSU and others .   The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation  .  Here Costello J (as he then was) 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 were justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 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 Complainant on 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 Complainant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, I 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. 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 particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

The Complaint stated that the reason she did not file her complaints until October 2022 was because she was in hospital and had surgery in early 2020. She was depressed after that. Unfortunately, the complaints were not filed within the one year period from the date of contravention therefore even If I was to extend the time pursuant to Section 41(8) the complaints would still be a further six months out of time.

Therefore, I find that the Complaints are statute barred and I do not have jurisdiction to hear them.  

CA 46917 – 01 The complaint is statute barred and accordingly fails.

CA 46917 – 03,The complaint is statute barred and accordingly fails.

CA 46917 – 05, The complaint is statute barred and accordingly fails.

Statute of limitations, reasonable cause, extension of time.