ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00042793

Parties:

Complaints:

Date of Adjudication Hearing:  24/05/2023

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 23 of the Industrial Relations (Amendment) Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The required Affirmation / Oath was administered to all witnesses present. The legal perils of committing Perjury were explained to all parties.

There were no issues raised regarding confidentiality in the publication of the decision.

Background:

Opening Issue: Time Limits

The complaint was lodged with the WRC on the 25th August 2022. The last day of employment was the 22nd of February 2022.

Respondent view

The Respondent pointed out that this was a period in excess of six months – Section 41 (6) of the Workplace Relations Act,2015 applies.

Accordingly, the Adjudication Officer has no jurisdiction to hear the case.

Complainant view

The Complainant requested an extension for a further six months – Section 41(8) of the Act allows for this on the basis of “Reasonable cause”.

The period in question was six months and three days.

The Complainant referred to “Translation” difficulties in getting the necessary forms in his own, Polish, language. He was also initially unaware of the existence of the WRC and the facilities available.

The Complainant agreed that he had contacted the Information Service of the WRC and had been advised in Polish, it appeared, by a WRC Staff member. Details of this were somewhat unclear.  He then referred to difficulties in getting assistance or advice as the former Employer “was well known in the Polish community” and possible advisors were very reluctant to get involved.

Eventually he sought assistance in Poland which added to the delays.

Adjudicator conclusion

Section 41(8) of the Workplace Relations Act 2015 allows a Time Limit extension of six months once  “Reasonable cause” has been demonstrated to an Adjudication officer.

The test for deciding if reasonable cause is shown for the purpose of Section 27(5) of the Act was considered by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll Labour Court Determination WTC0338 (October 28, 2003). Here the Court said: -

• "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.”

The Court must investigate the reasons which explain the delay and examine any excuse for the delay. In Minister for Finance v Civil and Public Services Union and Others[2007] 18 ELR 36, Laffoy J held that

• “…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

In this case the reasons offered were that the Complainant was not able to obtain proper translation facilities and was largely unaware of the WRC until well into the six month period. He then had to rely on services in his native Country for assistance.

At this stage in 2022 the WRC was publishing a large number of standard Documents and Procedure in the Polish language. Call to the Help Line can be facilitated in the Polish Language.

The lack of translation facilities cannot be seen as a “Reasonable cause” to delay lodging a complaint. The Commission affords the facility of providing a Polish Language translation service for a Hearing.

Accordingly the Adjudication view has to be that no “reasonable cause” existed to warrant an extension.

Accordingly the complaints are out of time.

1:        Findings and Conclusions:

2:        Decision:

Section 23 of the Industrial Relations (Amendment) Act, 2015 CA-00052418-002

Section 7 of the Terms of Employment (Information) Act, 1994 CA-00052418-009

Section 41 of the Workplace Relations Act 2015 ; Section 23 of the Industrial Relations (Amendment) Act, 2015 and Section 7 of the Terms of Employment (Information) Act, 1994 require that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the cited Acts.

The Complaints were not submitted within the proper time period (six months) and no reasonable cause was demonstrated to warrant an extension.

Accordingly, both Complaints are deemed not well founded and are dismissed.

The Complaints fail.

Dated:   9th November 2023

Workplace Relations Commission Adjudication Officer:  Michael McEntee

Key Words: