Complainant

Respondent

Parties

Con  O'Sullivan

Irish Arc Bantry Engineering Ltd  

Representatives

 SIPTU

 Gaffney Solicitors

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-00045866-001

17/08/2021

The complaint is recorded as having been received by the Workplace Relations Commission (WRC) on 17th August 2021 and relates to an alleged unfair dismissal. On that date the Trade Union sought an update in relation to a hearing date in respect of the complaint, which the Union stated was referred to the WRC on 9th December 2020. It was clarified to the union that no complaint had been received by the WRC on 9th December 2020 and that the complaint would be noted as being received on 17th August 2021 (outside of the statutory six-month referral period) and that an application could be made to the Adjudication Officer (AO) to extend time when the adjudication hearing took place. The union maintained its position that the complaints had been submitted on 9th December 2020 and that it would not be resubmitting the complaint on 17th August 2021. Further correspondence between the WRC and the union resulted in confirmation from the union on 2nd September 2021 that it would answer a “reasonable cause” case in seeking an extension of time at the adjudication hearing.

Adjudication Hearings

The matter first came on for hearing on 24th March 2022. The union’s submission which was submitted a day before the adjudication hearing did not address the matter of seeking an extension of time. The respondent did not provide any written submissions in relation to its preliminary objection relating to the existence of a valid complaint or on the substantive complaint of unfair dismissal. This hearing was adjourned so that the parties could provide the relevant submissions to the WRC. No further submissions were received as requested.

At the next adjudication hearing on 17th January 2023, the union submission addressed the issue of an extension of time, but the respondent had not received the submission in question and as it had been sent to the WRC on the evening before the adjudication hearing. The AO had also not seen the submission prior to the hearing taking place.

The hearing of the 17th January 2023 was also adjourned to allow the respondent time to receive and consider the union’s submission on the extension of time and to provide its submissions on the substantive complaint as had been requested previously on 24th March 2022. Again, no further submissions were received from the respondent as requested.

Further correspondence issued to both parties on 24th February 2023 and once again submissions were sought from the respondent and as had happened previously, there was no submissions provided as requested.

The matter was scheduled to take place in person on 22nd June 2023 in the WRC offices in Cork. In advance of the hearing taking place, the respondent confirmed in a submission to the WRC dated 9th May 2023 that it would not be addressing the substantive complaints and would not be providing any evidence on the matter as there was no valid complaint before the WRC.

In correspondence to the parties dated 29th May 2023, the AO stated that all matters would be addressed at the reconvened hearing on the 22nd June 2023 and that the respondent’s position in relation to the substantive complaint had been noted.

At the adjudication hearing on 22nd June 2023, all parties were in attendance. The respondent reiterated its position that no valid complaint was submitted, the extension of time issue was addressed for consideration and the respondent was then offered the opportunity to address the substantive complaint on the basis that the respondent bears the burden of proof in complaints of unfair dismissal.

The respondent stated that it would not be addressing the substantive complaint and would not be providing any evidence in relation to the matter. The respondent also confirmed that it had no comment to make on the losses identified by the complainant in the written submissions provided by the union and would not be addressing the complainant on the efforts made to mitigate those losses.

On the basis that the respondent did not defend the complaint or satisfy the burden of proof in relation to the substantive complaint, the union chose not to provide any evidence in relation to the complaints and sought that the complaints be deemed to be well founded and the complainant’s losses be awarded to him.

Preliminary Point – The existence of a valid complaint.

The respondent contends that there is no valid complaint before the WRC. The respondent stated that no complaint was received on 9th December 2020 as alleged by the complainant’s trade union. The respondent further stated that the union refused to submit a complaint when given the opportunity to do so on 17th August 2021 and instead simply sent a copy of the complaint which was supposedly submitted on 9th December 2020. On that basis the respondent contends that the AO does not have jurisdiction to hear a complaint that has not been properly submitted for adjudication.

Substantive complaint

The respondent declined to address the substantive complaint on the basis of its preliminary objection that there was no valid complaint before the WRC.

Preliminary Point – The existence of a valid complaint

The union contends that a valid complaint is before the WRC adjudication services. Notwithstanding its position on the initial referral date, the Union stated that it had confirmed its intention to seek an extension of time if required following its interactions with the WRC in August 2021. The union’s position is that if a valid complaint was not received on 9th December 2020, there was certainly a valid complaint with effect from 17th August 2021.

Extension of time

The union sought an extension of time if the receipt date of the complaint is deemed to be 17th August 2021. The basis for the application is that the complaint would have been submitted on 9th December 2020 but for a technical error and that this error only became known to the union on 17th August 2021 when it enquired about a hearing date in relation to its complaint of 9th December 2020. The union contends that this situation meets the reasonable cause test as set out in Labour Court Determination No: DWT0338 – Cementation Skanska v Carroll and offers both an explanation and excuse for the late referral of the complaint.

Substantive complaint

The union contends that the complainant was dismissed on 9th November 2020 following a flawed disciplinary process. The union stated that the complainant had a number of issues in the workplace and lodged a formal grievance in relation to same on 21st September 2020. Instead of addressing the grievances submitted by the complainant, the respondent carried out a disciplinary process which led to the complainant’s dismissal. The complainant was dismissed for gross misconduct for speaking to a client of the respondent in relation to how he was being treated in the workplace. The complainant was not provided with any opportunity to appeal the dismissal and was instead told to contact the WRC if he wished to appeal the dismissal. The complainant is seeking compensation in relation to his complaint.

Preliminary Point – The existence of a valid complaint

I note the strong and opposing views of both parties to this issue. It is clear that the union was in no doubt that it had submitted the complaint online on 9th December 2020. The union official sent a copy of what had been referred to the WRC to the complainant on that same day in the belief that the matter had been correctly submitted and received by the WRC.

The complaint itself has the word “submitted” at the end of the complaint form which, in the unions view, confirms that the complaint was submitted. The union in its correspondence to the WRC stated that there had been issues with the online WRC e-complaint form on 23rd November 2020 and also in March 2021 and accordingly the same issue must have occurred in respect of 9th December 2020.

The Union acknowledges that it did not receive the “pop up” that its complaint had been submitted to the WRC and did not receive an email confirmation of same as is the normal practice. In respect of the two dates referred to by the union, in respect of 23rd November 2020 all unsuccessful complaints were captured and re- constituted and in respect of March 2021 there were no issues with complaints referred to adjudication at that time.

While the Union was clearly of the view that it had no technical issues on the date in question and that it had done everything correctly and submitted the complaint online ultimately the complaint was not received by the WRC on 9th December 2020 which the WRC clarified to the union in August 2021. 

In relation to the 17th August 2021, a copy of the complaint of 9th December 2020 was provided to the WRC by the union when it had sought a hearing date and had been informed that no complaint had been received. At the time, the union reiterated its position that it would not be resubmitting its complaint as it had been submitted on 9th December 2020. However, in correspondence to the WRC on 2nd September 2021, the union stated it would seek an extension of time if required.

The respondent clearly stated that as the complaint had not been submitted on 9th December 2020 and as the union had refused to resubmit the complaint on 17th August 2021, there was in fact no valid complaint before the WRC and on that basis the AO had no jurisdiction on the matter. On this point, it is noteworthy that in correspondence submitted to the WRC on 16th January 2023, the respondent confirmed its understanding that complaints were submitted to and received by the WRC on 17th August 2021.

I have given careful consideration to this issue and noted the position of both parties. I also note that the WRC compliant form is not a statutory form and a complaint may be submitted by any means including a letter of referral or by submitting a draft complaint template. In my view, all parties were aware of the existence of a complaint to the WRC by 17th August 2021. I do not accept the respondent’s argument that there was never a valid complaint before the WRC. I find that a complaint of unfair dismissal was before the WRC on 17th August 2021 which was submitted outside of the statutory six-month referral period but within 12 months which requires an application to extend time and cite reasonable cause for the late referral of the complaint.

The Applicable Law

Section 6(1) of the Unfair Dismissals Act, 1977 provides as follows:

6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(b) of the Unfair Dismissals Act, 1977 provides as follows:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) not relevant…….

(b) the conduct of the employee,

Time Limits

Section 8(2) of the Unfair Dismissals Act, 1967 provides as follows:

(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,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.

Burden of Proof

Section 6(6) of the Unfair Dismissals Act, 1977 provides as follows:

6(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Extension of Time application

Despite the continuous delays from the parties in submitting the required documentation, the union submitted its application to extend time which had been received by all parties by the time the third adjudication hearing took place on 22nd June 2023. The Union stated that it was seeking an extension of time in relation to the complaint of 17th August 2021 in circumstances where it truly believed it had submitted the complaint on 9th December 2020 and only became aware of the issue regarding the complaint of 9th December 2020 when it sought a hearing date on 17th August 2021. The Union cited the Labour Court Determination in Cementation Skanska v Carroll DWT0338 in respect of seeking an extension of time and citing reasons that both explained and excused the delay in submitting the complaint.

Reasonable cause

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states 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.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

In relation to the application to extend time, I fully accept that the Union was of the view that the complaint was submitted to the WRC on 9th December 2020. It is obvious from the email sent by the union to the complainant on 9th December 2020 copying what had been submitted to the WRC that, that was the case. It is also clear that the union contacted the WRC in good faith enquiring about a hearing date on 17th August 2021 to be told that there had been no complaints received. It is unfortunate that the Union did not follow up earlier in respect of not receiving the pop up having referred the matter to the WRC or making further enquiries when no email confirmation was received in relation to the referral of the complaints. However, the reasons put forward by the union, in my mind satisfy the reasonable cause test as set out in Cementation Skanska v Carroll and provide an explanation and a reason as to why the complaints were received on 17th August 2021. It is also my view that the complaint should not be ruled out of time on the basis of this unfortunate set of circumstances that occurred, as I do not believe that this would be fair to the complainant in the within complaint. Having considered the matter, I grant the extension of time and will proceed to consider the substantive complaint of unfair dismissal.

Substantive complaint

The substantive complaint centres around the dismissal of the complainant for gross misconduct. The issue that led to a finding of gross misconduct was that the complainant informed a client of the respondent that he was being treated inappropriately in the workplace and that the respondent was not addressing the matter. The respondent undertook a disciplinary process in relation to this issue and when the complainant was dismissed without notice, there was no opportunity to appeal the dismissal and instead it was suggested to the complainant in the letter of dismissal that any appeal he may wish to make should be referred to the WRC.

The respondent’s representative declined to address the substantive case throughout the adjudication process and instead sought to rely on the preliminary point as outlined above. As the respondent did not satisfy the burden of proof that it bears in relation to complaints of unfair dismissal and declined to address the matter at all, I find that the complaint of unfair dismissal is well founded.

Losses and Mitigation

The complainant’s representative outlined the complainant’s losses in written submissions to the WRC. As the respondent did not address the substantive complaint or comment on the complainant’s losses, the union chose not to provide any evidence in relation to the losses or efforts undertaken by the complainant to mitigate same.

On the basis of the written submissions concerning losses, the complainant quantifies his losses at €77,754.84 since his employment with the respondent ended on 9th November 2020. Since his employment ended, the complainant has submitted approximately five applications for employment. These applications have resulted in intermittent work and at the time of the adjudication hearings the complainant is employed two days per week in a landscaping company since February 2022.There are no further submissions to suggest that the complainant has looked for further full-time work since February 2022 and on that basis, I am not satisfied that the complainant has made sufficient efforts to mitigate his losses since then. I also find that submitting approximately four other job applications between November 2020 and February 2022 is insufficient for the complainant in seeking to mitigate his losses. I have taken these factors into account in assessing the appropriate level of compensation.

For the reasons stated above, I find that the complaint is well founded. The respondent is directed to pay the complainant €20,000.00 in compensation which I consider to be just and equitable in all of the circumstances of the complaint.

Unfair dismissal, gross misconduct, extension of time