Complainant

Respondent

Parties

Joseph  Dunne

An Post

Representatives

Katie Glennon BL instructed by   Hogan Dowling McNamara Solicitors LLP

Cathal McGreal BL instructed by Paul Carroll An Post Legal Department

Act

Complaint Reference No.

Date of Receipt

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

CA-00049232-001

16/03/2022

The Complainant commenced employment with the Respondent on the 07/12/2007 and resigned on the 23/3/2021.  He was employed as a postal operative and was paid €700 gross/€650 net weekly.

On the 16/3/2022, the Complainant referred a complaint to the WRC pursuant to the Unfair Dismissals Act 1977 as amended (the 1977 Act).

The Complainant submitted that he was constructively dismissed on the basis that he had no other option but to resign due to the unreasonable conduct of the Respondent.

Preliminary Issue – Time Limits

As a preliminary application, Counsel on behalf of the Complainant sought an extension of time as his complaint was referred to the Director General of the WRC outside the six-month time limit provided for under the 1977 Act. Counsel on behalf of the Complainant submitted that pursuant to Section 8 (2) of the 1977 Act this limitation period may be extended by an Adjudication Officer for a further six-month period where the test of “reasonable cause” can be met.

It was submitted that as a result of his alleged constructive dismissal on the 23/3/2021 that he experienced debilitating changes in his mood. It was further submitted that as the Complainant had been a recognisable figure on his postal delivery round, he became humiliated and ashamed of the loss of his employment. In addition, the Complainant became depressed, experienced suicidal ideation, became isolated in his home, rendering him incapable of carrying out the normal activities of daily life. It is claimed that the Complainant’s symptoms remained static for a period of several months.

It is submitted that after a period of 11 months, the Complainant received third party assistance in seeking out legal advice and attending his GP to seek medical treatment. A medical report from the Complainant’s GP was appended in the Complainant’s submission dated 31/5/2022.

It is submitted that upon receiving legal advice from the Complainant’s former solicitor, the Complainant was assisted with lodging a claim with the WRC on 16/3/2022. It is further submitted that it is the Complainant’s position that the significant symptoms he experienced as a direct result of his constructive dismissal from the Respondent Company constituted an impediment rendering him incapable of seeking out legal advice or submitting a complaint to the WRC until third party assistance was provided.

It is further submitted that while the delay in this case was more than minimal, it is the Complainant’s position that the circumstances provide compelling evidence of a reasonable cause which remained static until third party assistance was given. It is stated that “once this was in place and the Complaints symptoms ceased to have operative effect, legal advice was obtained and the complaint was presented to the Workplace Relations Commission in  a timely manner”.

It was further submitted that the Respondent has not suffered any conceivable prejudice because of the delay and the Complainant has a good arguable case.

Reliance was placed on the well-established decision of the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll (DWT0338) in regard to the test of establishing “reasonable cause” in order to extend the time limit and the decision of the Labour Court in Salesforce.com v Leech (EDA1615).

Substantive case

The Complainant commenced employment as a postal operative with the Respondent on 07/12/2007. The Complainant worked for the first three years in the sorting office before being transferred to work on the delivery round where he worked for approx. 10 years. The Complainant conducted his deliveries by push bicycle and did not possess a driving licence.

In 2019, a new Delivery Services Manager was appointed and from then on it is submitted that the Complainant’s working environment became increasingly difficult, as he felt that he was being treated in a harsher manner than other employees. The treatment of the Complainant by this Manager formed the basis of an informal meeting attended by the Complainant and his trade union representative in or around 2019.

Following this meeting, it is submitted that the Complainant’s concerns were rebuffed. It is further submitted that in March 2021, the Respondent introduced mechanically operated tricycles for postal deliveries. These tricycles were intended to replace the use of push bicycles entirely.

It is submitted that the Complainant was extremely anxious about using these tricycles, he found them difficult to use and felt that he was unable to use them safely on the roads.

On the 22/3/2023 the Complainant attended a meeting with the Delivery Services Manager in order to request that he is allowed to continue to use his bicycle. At this meeting the Complainant was informed that the Respondent was replacing all bicycles and that he would be required to use the tricycle if he wanted to continue in his role.  It is submitted that the Complainant proposed that he be transferred back to his previous role on the night shift in the sorting office. This proposal was refused on the grounds that there was no vacancy.

It is submitted that the Complainant was subsequently told by Mr Rogers that if he could not operate the tricycle he should consider resigning. It is further submitted that as a result of the unreasonable, unfair and stress inducing conduct of the Respondent from 2019 onwards, culminating in the meeting of the 22/3/2021 in which it is submitted that there was a unilateral change in the Complainant’s work practices and a refusal to accommodate him with his bicycle or in another role, the Complainant felt that he had no option but to leave his employment the next day, the 23/3/2021.

At the hearing Counsel for the Respondent objected to the admissibility into evidence of a medical report regarding the Complainant referred to above, on the grounds that there was no medical expert present at the hearing to stand over the report. At the hearing Counsel for the Complainant withdrew the medical report. As the medical report was not admitted into evidence, Counsel for the Complainant confirmed that the Complainant was relying solely on his oral testimony.

Counsel for the Complainant submitted at the hearing that the Complainant was not able to engage in any cogent thoughts regarding taking a claim after he resigned. It was further submitted that based upon the evidence of the Complainant it is clear that once he was advised by a third party, he sought legal advice, and a claim was lodged with the WRC. Counsel further stated that that there was no need for a medical report and the Complainant was relying upon the Complainant’s own evidence regarding his symptoms. Regarding the issue of when the Complainant decided to refer the case Counsel stated that there are no legal authorities which state that the decision to refer the case must be made within the first 6 months of the relevant date, regarding the extension of the time limit pursuant to Section 41(8) of the Workplace Relations Act 2015 as amended.  

Summary of Evidence of the Complainant, Mr Joseph Dunne

The Complainant stated that he was employed with the Respondent for 13 years as a postman. He used a push bike on his postal deliveries, he never drove a car and was very nervous about using a tricycle. The Complainant attended one training session for using the tricycles, and he stated that he couldn’t manage them.  He stated that he was a nervous wreck, he was afraid of having an accident, and that he might kill himself or another person.

The Complainant attended a meeting on the 22/3/2023 with his union representative and he stated that at this meeting he told them he couldn’t use the tricycle. He was told by Mr. Rogers when he enquired about alternative positions that there was no night work available. He stated that he resigned that night. When asked why he didn’t use the Respondents grievance procedure he stated that he didn’t know anything about it. He stated that he wrote a letter of resignation on the 22/3/2023. The Complainant stated that he was told more or less that he had to resign and was told there were no other positions available. He stated that it took him 12 months to get back on his feet.

The Complainant stated that he felt depressed after he resigned, he didn’t want to speak to anyone and wanted to end his life. These feelings lasted until he got counselling. The Complainant couldn’t recall when he got counselling. He met a Sinn Fein Councillor, and he went to see a solicitor after that. The Complainant stated that he never had these symptoms before.

In cross-examination the Complainant confirmed that the Union rang him on the 23/3/2023 and asked him to change his mind, and that he was supposed to go back for more training on the tricycles. The Complainant confirmed that he wrote his letter of resignation on the 22/3/2023 but dated it 23/3/23. The Complainant confirmed that he lost trust in the Union after he resigned. He also stated that they were not very helpful. The Complainant stated that in order to complain about the treatment he received from the Respondent he had to go through his Union to make a complaint. He further stated that he had lost confidence in the Union on the basis that when he attended the meeting with his union representative on the 22/3/2022 they said nothing on his behalf.

In cross-examination the Complainant confirmed that he knew nothing about the Respondent’s grievance procedure. The Complainant confirmed that if he had to do it all again, he would have lodged a grievance. He also confirmed that he didn’t complain to anyone.

The Complainant confirmed, regarding a timeline, that the first time he was examined by his GP was on the 14/4/2022 and that he was examined by his GP on the 31/5/22 for the purposes of Personal Injuries Assessment Board.  

In cross-examination the Complainant confirmed that he went to see his doctor after he lodged his complaint with the WRC. It was put to the Complainant that it was months later after he resigned that he decided to refer a complaint. The Complainant confirmed that it was 9 or 10 months after he had resigned when he decided to refer a complaint.  He also stated that he had a nervous breakdown months later and his mental health was all over the place. The Complainant confirmed that the third-party assistance was from a Sinn Fein councillor that he met. The Complainant confirmed that he first sought legal advice in March 2022. 

The Respondent denies the claim of constructive dismissal. 

Preliminary Issue – Time Limits

Counsel for the Respondent submits that an Adjudication Officer may extend the prescribed 6-month time if the Complainant can show that the failure to refer the complaint at an earlier date was due to reasonable cause. The meaning of “reasonable cause” has been elucidated by the Labour Court in Cementation Skanska v Carroll DWT 38/2003. It is submitted that the Complainant’s submission lacks: -

a.       what facts and circumstances were known or operated on the Complainant’s mind at the material time;

b.       the entire narrative history of what occurred from the purported date of dismissal to 16 March 2022 when the claim was lodged, a 51-week period which the Complainant barely describes.

It is submitted that the Labour Court in the above case went on to state that the length of the delay should be considered. A short delay might only require a “slight explanation” whereas a long delay might require “more cogent reasons”. It is further submitted that this may be the Complainant’s greatest difficulty. It is a delay nearing the maximum it can be and the cogency of the reasons is therefore key.

It is further submitted that evidence is required of the medical condition alleged for the purpose of the examination of the preliminary issue. Furthermore, it is also required if the case is to be made that the medical issue claimed, was caused by the dismissal. 

Another very important factor is the strength of the case as part of the consideration of the extension of time argument. It is contended that it is inaccurate to suggest that this is a case that is anything else than hopeful given the failure to even try, let alone exhaust, the perfectly appropriate and applicable Grievance Procedure. 

It is submitted that the Respondent does not accept the practice of simply exhibiting a medical report in a submission. The Respondent objected in their submission to accepting the medical report which it stated does not support what is submitted by the Complainant. In regard to the extension of time it is submitted that the Complainant has not included any admissible evidence which would satisfy the test to extend the time limit.

Substantive case

The Respondent submits that there is no substance to the Complaint’s claims under the Unfair Dismissals Act 1977, which are denied.

It is submitted that some 51 weeks after the Complainant says he resigned, the Complainant has now made pointed allegations, dating back as far as 2019 about his manager, and by inference the Respondent, for the first time, and he has chosen to do so in a public forum. It is submitted that fair procedures do not just apply to the Complainant as an employee, they also apply to the Respondent in these proceedings and to its other employees, and in particular the Complainant’s manager, Mr Rogers.

It is submitted that the Complainant has not only delayed making these allegations, but has done so by being vague, by providing very little detail and leaving open issues with obvious lacunae both in terms of witnesses and documents. The Respondent denies that there is any substance to the Complainant’s claims. It is further submitted that they should have been made a long time ago, in the appropriate way, supported by evidence, through the grievance procedure.

It is submitted that it is for the Complainant to make his case and this burden does not shift until he has done so.

It is submitted that all claims in regard to allegations made by the Complainant in relation to what Mr Rogers allegedly stated are denied. It is argued that it is entirely inappropriate to make various allegations for the first time in these proceedings or any proceedings at this point in time. The Respondent is relying on the absence of obvious witnesses and documentary evidence in particular in relation to medical diagnoses that have not been supported by medical evidence. The Respondent relies on the fair procedures right to have allegations formally made, noted and an opportunity allowed to enable it to respond before instituting proceedings. It is claimed that that this would have been done if the grievance procedure had been invoked. Furthermore, it is submitted that it is entirely wrong of the Complainant to suggest that no prejudice arises to the Respondent.

It is submitted that in relation to the law on constructive dismissal that the reasonableness test asks whether the employer conducts itself so unreasonably that the employee cannot fairly be expected to put up with it any longer, and, if so then the employee is justified in leaving. Under the first limb of this test, the Complainant would have to be able to show that he behaved reasonably by invoking the grievance procedure. It is further submitted that at a minimum, the Complainant would have had to favourably compare his claim to those very rare cases where internal grievance procedures are not invoked and yet resignation is still justified. Even if he were able to do so, it is argued that this is a case where, through his Union, the Complainant agreed to process his grievances exclusively through the grievance procedure.

At the hearing Counsel for the Respondent submitted that is clear from the evidence of the Complainant that he didn’t form the intention or make the decision to refer the case within the first 6 months from the date of his resignation. Counsel stated that the decision to bring the case in the first instance must be made within the first 6 months. It is only then that the factors constituting reasonable cause should be considered. Counsel relied upon the decision in Cementation Skanska (formerly Kvaerner Cementation) v Carroll (DWT0338) as authority for the reasoning that there must be evidence to show that the decision to fight the case was made within the first 6 months and it is only then that the factors constituting reasonable cause should be considered. Counsel submitted that the evidence of the Complainant who stated that he didn’t make the decision to refer the case until 10 months after his resignation is fatal regarding his application to extend the time limit.  

Summary of Evidence of Stan Rogers, Delivery Services Manager

Mr Rogers stated that the tricycles were introduced nationwide to assist deliveries of more product. He stated that he had received very positive feedback from other post offices regarding their use. He stated that in his office the Complainant was the only employee who found the transition to the tricycle insurmountable. Mr Rogers put in a request for extra training. He stated that the local union embraced the introduction of the tricycles. He stated that he was not aware that the Complainant was critical of the union.

Mr Rogers stated that he had no recollection of asking the Complainant to resign at the meeting of the 22/3/21, he stated he would never say that to an employee.   Mr Rogers stated according to his recollection of that meeting he asked the Complainant how he was going to operate without a driving licence and the Complainant stated that he would work nights. Mr Rogers replied that there were no vacancies on the night shift. He stated that the meeting ended with the Complainant refusing to use the tricycles. He stated that the launch of the tricycles planned for the 23/3/23 had to be cancelled. He was contacted by the union who inquired if more training could be provided to the Complainant. Mr Rogers stated that he got a call from the Union that day to say that the Complainant would not be attending more training and that he was resigning.

In cross-examination Mr Rogers confirmed while the Complainant was not the only employee who was hesitant about using the tricycles that he was the only person who had an insurmountable difficulty with it. Mr Rogers confirmed that the Complainant was not sent for an occupational health assessment as he had never mentioned that he had a health issue. It was put to Mr Rogers that training was offered to the Complainant and that all avenues led to him getting on the tricycle, that at the meeting of the 22/3/23 the Complainant had a solution working on the night shift and that no other options were discussed with him. It was put to Mr Rogers that the Complainant had different personal characteristics. Mr Rogers replied that no medical evidence was ever presented to him stating that the Complainant had different personal characteristics.   

Preliminary Issue – Time Limits

The Complainant was a longstanding employee with the Respondent. It is not disputed that his employment ended on the 23/03/2021. It is also not disputed that this is the relevant date of contravention for a complaint pursuant to the 1977 Act.

Section 8(2) of the 1977 Act provides:

“(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 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.”

‘Reasonable cause’ in section 41(8) of the Workplace Relations Act is worded slightly differently and provides in the relevant part:

‘(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.’

The difference in wording of both provisions is the 1977 Act refers to the complainant being ‘prevented due to reasonable cause’, while the Workplace Relations Act refers to ‘due to reasonable cause’ and makes no reference to prevention. It is noted that the relevant test in both Acts is that of “reasonable cause”.

The well-established test for granting an extension of time for reasonable cause is set out in the Labour Court decision of Cementation Skanska (formerly Kvaerner Cementation) v Carroll (DWT0338) where the Court held:

‘It is the Court's view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant 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 Complainant has a good arguable case.’

The Complainant referred his claim to the WRC on the 16/3/2022, outside the 6-month time limit as provided for at Section 8 (2) (a). The time limit may be extended up to 12 months where I am satisfied that there was reasonable cause for not submitting the claim within the 6-month time limit.  It is noted that the claim was referred after 11 months and one week after the termination of the Complainant’s employment.

The onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of reasonable cause. 

I appreciate that the Complainant suffered much distress and appeared to be significantly impacted in the aftermath of leaving his employment. However, in the circumstances of this case I cannot find that he has satisfied the test for establishing reasonable cause as required under Section 8(2) (b) of the 1977 Act, for the following reasons.

I accept the Complainant’s evidence when he stated that he did not make the decision to refer the case to the WRC until 9 or 10 months after he had resigned. I consider this evidence to significantly undermine his ability to satisfy the test in establishing reasonable cause.

I accept the Complainant’s evidence regarding how he felt depressed and isolated after leaving his role.  However, I did not have before me any medical evidence to support a medical diagnosis or to support the assertion that the symptoms the Complainant experienced prevented him from lodging a complaint to the WRC in time.  Accordingly, in the absence of any medical evidence, I do not accept the Complainant’s position that the symptoms he experienced as a direct result of his alleged constructive dismissal from the Respondent constituted an impediment rendering him incapable of submitting a complaint to the WRC.  I note the Complainant’s evidence that the first time he was examined by his GP was on the 14/4/2022 a month after his claim was lodged.

It appears to me that the trigger for the Complainant in lodging his complaint after 11 months was meeting a third party, who the Complainant stated in evidence was a Sinn Fein councillor. The Complainant stated that after this meeting he obtained legal advice in March 2022 and was assisted with lodging his claim. It is submitted that the Complainant’s symptoms remained static for a period of several months until third party assistance was given. It is submitted that “once this was in place and the Complainant’s symptoms ceased to have operative effect”.

It appears to me that the Complainant’s symptoms reduced or improved as a result of meeting a third party who assisted the Complainant in obtaining legal advice, and not as a result of receiving medical treatment or any medical intervention. The fact that the Complainant did not attend his GP until the 14/4/2022 in my view supports this conclusion.  Therefore, I am not satisfied that due to the extent of the Complainant’s medical symptoms he was rendered incapable of lodging his claim in time. I find that that the reasons relied upon by the Complainant do not explain and excuse the Complainant’s delay.   

The Labour Court in Cementation Skanska alsoreferred to the length of the delay as a factor, and that “A short delay may require only a slight explanation whereas a long delay may require more cogent reasons “.  I find that in light of the length of the delay whereby the claim was lodged near to the expiry of the 12-month time limit, the reasons relied upon by the Complainant are not sufficiently cogent to justify extending the time limit. 

For the reasons set out above, I find that the Complainant has not established that he was prevented from referring his claim within the time limit due to reasonable cause. Accordingly, I find that I do not have jurisdiction to determine this case under the Unfair Dismissals Act 1977 as it was not submitted within the required time period and the Complainant has not established that he was prevented from doing so due to reasonable cause as per Section 8(2) (b).    

I find that I do not have jurisdiction to determine this complaint under the Unfair Dismissals Act 1977 as it was not submitted within the required time limit and the Complainant has not established that he was prevented from doing so due to reasonable cause as per Section 8(2) (b).    

In the circumstances, I dismiss the complaint.

Unfair Dismissals Act – preliminary issue - time limits for referral of claim - extension of time limit – reasonable cause -