Complainant

Respondent

Parties

Sian  Webb

Equipet Retail Ltd

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00052037-001

02/08/2022

The Complainant take issue with the Respondent not telling her that someone would be carrying out her role whilst she was on maternity leave together with the fact that that person remained on after she returned thus diminishing her responsibilities.

Ms. Donovan BL on behalf of the Respondent raised the following preliminary points:

1.       The limitation period

2.       The relevant employer.

The limitation period:

The Complainant’s complaint form was filed with the WRC on the 2nd August 2022. It appears that the Respondent was only put on notice of the complaint on the 1st November 2022. The period encompassed by the compliant is 3rd February 2022 to 2nd August 2022.

The Complainant in the WRC complaint form accepts that her claim is out of time but has in effect put forward the “ignorance of the law” argument as the reason for her failure to file the claim within the six months required by statute. It is well settled law that “ignorance of the law” will not result in an extension of time.

The Relevant employer.

From 1st November 2021, following the transfer of undertakings to Maxizoo Limited the Complainant herein was no longer employed by the Respondent. Furthermore, from that date, 1st November 2021, the Respondent legal entity no longer existed, having changed its name immediately following the transfer. Even if the Complainant were to file a claim now against the correct legal entity that claim would be statute barred being outside of the one year time limited allowed for by S41(8).

The WRC procedures publication stated that it is “vital to check the correct legal name of the employer/ respondent is entered on the form”. It is the Complainant’s responsibility to check the correct name of the entity she is bringing the claim against. 

Following the affirmation, the Complainant gave her evidence as follows:

She stated that she went out on Maternity leave in May 2021. Her baby was five weeks early. Whilst she was on leave another employee was tasked with carrying out her role. She had not been informed of that situation. That person who had been covering for her was then promoted to an assistant manager role. When she came back to work on the 14th February 2022 she had to work alongside the assistant manager. She felt that that in some way diminished the role she had prior to maternity leave. Whilst she was out on leave the Respondent was taken over by a company called Maxizoo limited. The Complainant went through a mediation process with Maxizoo and a satisfactory resolution was reached. 

The Complainant did not know of the situation with the employee who had been covering her role until she received an email on the 01.02.2022. She filed her claim with the WRC on the 02.08.2022 six months and one day after the date of knowledge.

The Complainant states that she was not aware of the “subject matter” leading to this compliant until she received a letter from her employer on 01.02.2022. Thereafter she was aware of the situation. She did not file her claim until 02.08. 2022.

S41(6) Workplace Relations Act 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 Applicant on an extension of time application 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 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 date of the contravention to which this compliant related is May 2021 when the Complainant went on maternity leave and when someone was employed to carry out her role. The date of knowledge of the contravention is the 01st February 2022. Either way the compliant was filed outside of the six month time limited. I note that the Complainant was involved in a medication process within the WRC in relation to similar issues but with her current employer. She did not put forward any argument that could allow me to make a finding of reasonable cause pursuant to S41(8). Therefore, I have no option but to find that I do not have jurisdiction to hear the within complaint.   

The Complaint fails.

Limitation Period. Reasonable Cause. Jurisdiction.