Complainant

Respondent

Parties

Anniela  Barboza

Cpl Solutions Ltd Covalen

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Tiernan Lowey, B.L.  instructed by CC Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00052063-002

03/08/2022

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

CA-00052063-003

03/08/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00052063-004

03/08/2022

The complainant was employed by the respondent as a Community Operations Analyst and was placed in one of the respondent’s client sites.  She commenced this employment on 11/01/2021.  The complainant failed her probation and was dismissed on 18/08/2021.  She was paid €3,000 gross per month.  She submitted her complaints to the Workplace Relations Commission (WRC) on 03/08/2022.

The respondent’s representative raised a preliminary point in relation to the time frame.  It was submitted on behalf of the respondent that the delay by the complainant in submitting her complaints was significant and a decision on this matter was essential and this would obviate the need to have a full hearing in relation to these complaints.  Specifically, the complainant does not have 12 months service in order to bring a claim under the Unfair Dismissals Act and the complaint in relation to Minimum Notice and Terms of Employment are misconceived.  The complainant received one weeks’ notice which meets the statutory requirement and there were no changes to the complainant’s terms and conditions.

The complainant’s submission that she has grounds for reasonable cause do not meet the rigorous demands outlined in various case law and in particular that considered by the Labour Court in Cementation Skanska v Carroll DWT 38/2003:

“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 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”.

It was submitted on behalf of the respondent that a six-month delay requires a significant explanation but in the case of the complainant who submitted her complaints almost 12 months after her dismissal any explanation required an even more significant explanation and must align to “reasonable cause”.

The respondent’s representative acknowledged that it is the practice of the WRC to reserve a decision on a preliminary matter but submitted that this case clearly merits a decision on the preliminary issue before proceeding to hear the substantive matter.  Having a lengthy hearing on the substantive matter would not be justified as there is no dispute in relation to all the key dates in relation to the commencement and termination of employment or the date of referral of the complaints to the WRC.

The complainant gave evidence on oath in relation to her complaints and the delay in submitting those complaints to the WRC.  She submitted that the decision to end her probation was unfair and the respondent did not follow its own policy and procedures.   In relation to the delay in submitting her complaints the complainant were due to: (a) the fact that she was not allowed to submit an appeal (b) the decision to terminate her employment was based on the opinion of her manger (c) She did not have an understanding of the Act(s) and her lack of representation (d) she had a restriction in her contract of employment which made it difficult for her to obtain similar employment.

In response to questions from the Adjudicator the complainant confirmed that she “understood the technicalities” of the legislation in relation to time frames.  She felt that when her reasons when taken together, affird sufficient grounds to meet the explanation for her delay. The complainant does not accept the respondent’s preliminary objections.  The complainant confirmed that she understood that a decision in relation to the timeframe was pivotal to her case. 

In this case it is accepted that the complainant submitted her complaints to the WRC on 03/08/2022. There was no application for an extension of time made at that time.  This was a period of 11 months and 16 days after her dismissal which took place on 18/08/2021. The respondent submits that the complaints are statute barred for the purposes of the Acts.  In contesting that application the complainant raised a number of points which she believes amount to “reasonable cause” which would explain the delay.  If the complainant was successful in these points the matter would be considered to be in time and the substantive matter would fall to be considered.

I will look in detail at the time issue. The complainant’s sworn evidence was that she did not submit her complaints until 03/08/2022. 

The complainant has submitted three employment rights complaints:

a)       Complaint seeking adjudication by the WRC under section 12 of the Minimum Notice & terms of Employment Act 1973

b)      Complaint seeking adjudication by the WRC under section 7 of the Terms of Employment (Information)Act, 1994

c)       Complaint seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1997.

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.

It is clear that the complaints in this case fall outside a 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 have no jurisdiction to hear and consider these three complaints.

CA-00052063-002: Complaint seeking adjudication by the WRC under section 12 of the Minimum Notice & terms of Employment Act 1973.  I have decided that I have no jurisdiction to hear and consider this compliant.

CA-00052063-003: Complaint seeking adjudication by the WRC under section 7 of the Terms of Employment (Information)Act, 1994.    I have decided that I have no jurisdiction to hear and consider this compliant.

CA-00052063-004: Complaint seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1997.  I have decided that I have no jurisdiction to hear and consider this compliant.

Time limit.  Jurisdiction