Complainant

Respondent

Parties

Michael  Martin

Scrutton's (NI) LTD Scrutton's

Representatives

Byrne Wallace LLP

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-00054383-001

05/01/2023

OnFebruary 17th, 2022,thecomplainantwasdismissedforgrossmisconduct.

He had attended work while under the influence of drugs, which was verified in a random drug test. The respondent, following a disciplinary process determined that the sanction of gross misconduct was the correct sanction given the safety critical environment in which the complainant was working, and the serious risk posed to him and his colleagues by operating machinery while under the influence of drugs.

The complainant lodged his claim with the Workplace Relations Commission on January 5th, 2023, nearly eleven months after the dismissal, and outside the required time limits. This requires to be dealt with as a preliminary issue.  

In relation to the preliminary issue regarding time limits the complainant could offer nothing to explain or excuse the delay in submitting a complaint apart from saying that he had only met someone just before Christmas who told him that he might have a case.

No reasonable cause has been offered by the complainant for submitting his claim outside of the six-month time limit for bringing an unfair dismissal claim.

The complainant states in his complaint form that the reason he failed to lodge his claim was because he only became aware at Christmas after saying it to someone that he might be able to bring a claim. There was no impediment to the complainant seeking either legal advice or advice from a trade union on the time-limits for bringing a claim. In fact, he had been represented by a trade union during the disciplinary process.

Ignorance of the law is not a reasonable cause for the complainant’s failure to bring a claim within six months from the date of dismissal. He is therefore out of time to bring the claim and the Adjudicator does not have jurisdiction to hear the claim.

Section 8 of the Unfair Dismissals Act 1993 states the following in respect of time limits:

“AclaimforredressunderthisActshallbeinitiatedbygivinganoticeinwriting(containingsuch particulars(ifany)asmaybespecifiedinregulationsundersubsection(17)ofsection41ofthe Actof2015)totheDirectorGeneral—

(a)  within the period of 6 months beginning on the date of the relevant dismissal, or 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”.

Section 41 (6) of the Workplace Relations Act 2015 further states: -

“Subjecttosubsection(8),anadjudicationofficershallnotentertainacomplaintreferredtohim orherunderthissectionifithasbeenpresentedtotheDirectorGeneralaftertheexpirationof theperiodof6monthsbeginningonthedateofthecontraventiontowhichthecomplaintrelates.”

and

(8)Anadjudicationofficermayentertainacomplaintordisputetowhichthissectionapplies 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.”

In CementationSkanska(formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:

“ItistheCourt'sviewthatinconsideringifreasonablecauseexists,itisfortheclaimanttoshow thattherearereasonswhichbothexplainthedelayandaffordanexcuseforthedelay.Theexplanationmustbereasonable,thatistosayitmustmakesense,beagreeabletoreasonand not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests anobjective standard, but it must beapplied tothe factsandcircumstances knowntotheclaimantatthematerialtime.Theclaimant’sfailuretopresenttheclaimwithinthe six-month time limit must have been due to the reasonable cause relied upon. Hence there must beacausallinkbetweenthecircumstancescitedandthedelayandtheclaimantshouldsatisfy theCourt,asamatterofprobability,thathadthosecircumstancesnotbeenpresenthewould have initiated the claim in time.

Thelengthofthedelayshouldbetakenintoaccount.Ashortdelaymayrequireonlyaslight 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 infavour 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 examining “reasonable cause”, the Labour Court in Salesforce.comv LeechEDA1615 held as follows:

“It isclear fromthe authorities that the test places the onus onthe applicant for anextension 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 the complaint 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 particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, 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 High Court in Minister for Finance v Civil and Public Services Union &Ors[2007] 18 E.L.R. 36 (per Laffoy J.) it was established that:

“ignoranceofone’slegalentitlements,asopposedtoignoranceofthefactsgivingrisetothose rights,doesnotexcuseafailuretopresentaclaimintime”.

In BusEireannv SIPTU8/2004 the Labour Court stated:

“a preliminary point should be determined separately from other issues arising in a case where it would lead to considerable savings in both time and expense and where the point was a question ofpurelawwherenoevidencewasneededandwherenofurtherinformationwasrequired”.

The Complainant was dismissed on 17 February 2022. The claim for unfair dismissal was not lodged until January 5th, 2023, some ten and a half months later. Given the delay, it is submitted cogent reasons for the delay are required to be evidenced by the Complainant.

Further as set out in the case of Salesforce.com v Leech EDA1615, the onus is on the complainant to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.

In this instance, the complainant’s excuse is that he had not known of the time limits. This is not an excuse particularly in circumstances where he had been represented by SIPTU during the process and where there has been a considerable delay in bringing the claim. The claim is out of time and should be dismissed on this basis.

I heard both parties on the preliminary matter and reserved my decision. I then proceeded to hear the substantive matter on the basis that, if the complainant’s application for an extension were upheld, I would issue a decision on the dismissal.

In relation to the preliminary matter on time limits, the respondent has set out the applicable law in its submission. I am obliged to follow it.

The requirement placed on a complainant seeking to extend the period might be summarised as meeting the ‘explain and excuse’ test and the requirements of the test are clear from the various leading authorities set out in the respondent’s submission.

The complainant has failed to meet these requirements and has not provided an explanation which offers a justifiable excuse for his delay in submitting the complaint.

Accordingly, his complaint has not been submitted within the required time limits and is therefore not within jurisdiction.

For the reasons set out complaint CA-00054383-001 is not well-founded.

Unfair Dismissal, Time limits