Complainant

Respondent

Anonymised Parties

A Researcher Ph D and Lecturer

A University

Representatives

  Appeared In Person

David McCarroll, Ronan Daly Jermyn Solicitors

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-00054920-001

07/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055669-001

23/03/2023

On 7 February 2023, the complainant, a lay litigant submitted a complaint of unfair dismissal for having made a protected disclosure against a university.

On 2 March 2023, the WRC issued a notification to the complainant that:

“An Adjudication Officer cannot entertain a complaint if it has been presented after the expiry of the period of 12 months beginning on the date of the contravention to which the complaint relates. It would appear from the information submitted by you that this complaint was submitted outside of the 12 months statutory time limit “

On 23 March 2023, the complainant submitted a complaint under the Terms of Employment (Information) Act, 1994, that he had not received a statement of his core terms in writing under the Act.

On 25 March 2023, the Complainant wrote to the WRC and confirmed that a previous complaint of unfair dismissal, ADJ 42078, had been withdrawn. He explained that he had some difficulty in understanding the adjudication process but had received welcome clarification from the WRC.

The Complainant wrote that his employment relationship with the University had been “unlawful “and indicated that he had contacted his sponsoring Foundation for further information to resolve the “inconsistency between financial information provided by the University and the sponsor.

All communication received from the complainant was shared with the respondent University on 12 April 2023.

On 25 April 2023, the Respondent representatives, Ronan Daly Jermyn Solicitors came on notice in the case. The claims were denied.

The Respondent representatives sought dismissal of the claim in accordance with Section 42 of the Workplace Relations Act, 2015 as statute barred. The representatives went on to write that given the issue with time limits, it would be unfair to put the respondent at further cost of defending the claims.

The Respondent disputed the complainant’s employment status and outlined that the complainant was a Post Graduate student.

The Director General delegated this case to me on July 4, 2023. The case was put down for hearing on September 1, 2023, at the WRC Office.

I wrote to the complainant on July 31, 2023, seeking an outline response to the preliminary issue in the RDJ correspondence of April and requested that this be incorporated in his requested outline submission for hearing. I confirmed that I would hear this preliminary matter, inviting comments / evidence from both parties at the outset of the hearing. I requested all documents no later than Friday, August 18, 2023. This was copied to the Respondent.

On August 4, the complainant responded to the 25 April Respondent letter and referred to it as “decidedly misinformed “He attributed the time lapse to the Respondent which he argued had obstructed him.

The Respondent submitted their outline submission on 18 August 2023, which was copied to the complainant.

The Complainant submitted his outline submission on 25 August 2023, which was shared with the Respondent.

The Complainant appeared in his own case as a litigant in person.

The Respondent was represented by RDJ Solicitors led by David Mc Carroll and Karen Dodd joined by  Mr. A from the University .

I first met the parties, awaiting commencement of the hearing at 12.30pm in hearing room 3, where the hearing was allocated.

 As I had started my hearings that day in hearing room 1, and it was much cooler there, I invited the parties to assemble in room 1, saying they would find it a better room to work in. All agreed.

I introduced myself to all present and asked them to do likewise and explain their role on the day.

I instructed the parties that phones were to be turned off and no taping or live streaming was permitted.

Both parties confirmed that they had read each other’s submissions.

I welcomed the parties to hearing and proceeded to work through and agree the content of both complaint forms in

1. CA-00054920 -001 Constructive Dismissal for having made a protected disclosure

2. CA-00055669-001 No Statement of core terms of employment

I recounted the chronology of the case file to date. I explained the process I was about to undertake and outlined the avenue of appeal for my eventual decision, if necessary.

The complainant gave his evidence by affirmation and was his own witness. The Respondent did not put Mr. Burke forward as a witness.

It is a minor thing to mention, but the Respondent furnished the complainant with copies of their submission, inclusive of the complaint forms at hearing. I also assisted the complainant in providing him a jotter and highlighter pen to assist in his response on the Authorities put forward by the respondent. I informed the Respondent that I passed that jotter.

While I probed the issue of statutory time limits as the Preliminary Issue with the complainant and sought to focus on the period surrounding the submission of both complaints earlier this year, the Complainant gave evidence that he had been advised to bring his case to the WRC by the Minister for Education. He countered this by saying that he may have been directed to the Ombudsman. I was puzzled at this declaration and asked to see the associated documentation to help me understand. The Complainant readily agreed to forward the documents but did not do so. I wrote to him post hearing offering a 15-day window to submit, but this was declined.

The complainant outlined that he had worked as a PhD Researcher and Lecturer at the Respondent University from September 1, 2016, until the date of his termination through constructive dismissal on 30 September 2018.

He outlined that he was unaware of his actual employment status during that period as he had not been registered as an employee or received wages. However, he was clear, he was working at the University during the period recorded. He was paid through a Sponsor fund in the form of a stipend, the amount had only come to his attention through efforts made to secure data under data protection regulations. He requested that his employment be considered in that vein.

On his complaint form, the complainant outlined that, while present at the University, he had made a complaint of verbal sexual harassment against his Ph D Supervisor, and this was known by two Professors. He outlined that he had been denied the presence of his solicitor at an associated meeting.

 He described progression on his Ph D and was upgraded to full Ph D. This was subsequently overturned and downgraded by the Respondent on the disputed explanation that the replacement supervisor was “did not have the expertise in my area of research “

The Complainant was denied leave of absence as he did not have a supervisor available to him.

The Complainant went on to outline that he had participated in the university procedures surrounding the complaint of sexual harassment made but contended that he had been held back by the process adopted by the respondent through an unsatisfactory external report in June 2021.

The complainant outlined that he had been constructively dismissed and distanced from his Ph D and maintained that what had occurred had amounted to denial to investigate his complaint of sexual harassment. He sought that.

“The WRC will adjudicate this matter at a full hearing for the good of all students and employees in every Irish University and in the Irish Education as a whole “

The Complainant moved to a new University in the academic year of 2018 and completed his Ph D in 2021.

He has not found new work following his dismissal and furnished a table of loss to his submission. He was requested to address mitigation and took issue with that request. I did note that mitigation formed a header on the complainant’s own outline submission and considered it a reasonable and pertinent question.

 The Complainants written outline submission addressed both complaints from February / March 2023.

He outlined that the Department in which he worked expected him to carry out administrative and organisational tasks in return for fees paid, yet he had been rendered invisible by the respondent.

He submitted that when he attempted to whistle blow the harassment, he was constructively dismissed by the respondent.

He submitted that the employment relationship was undocumented, unlawful and never officially terminated until the present moment.

CA-00054920-001 Claim for Constructive Dismissal

It was the Complainant case that he was prevented from verification of a breach of the Act until he received the clarity of the research grant information on March 22, 2023. He disputed the data received as the respondent had told him they had no record of fees paid to him.

“Yet the fees are now visible in the accounting statement finally released to the complainant on 22 March 2023. This indicates either a clerical error on the part of X Foundation or a theme of data handling and doctoring of documents on the part of the Respondent bordering on the criminal, which disadvantaged the complainant in employment rights.” He said fees are equal to a stipend.

The Complainant submitted his claim one day after he was finally able to verify and confirm a breach of the Act.

The Complainant maintained that he was managed out in the vein of a failed undergraduate student and was constructively dismissed in an extreme manner in draconian measures in September 2018.

He said he was denied the presence of a Solicitor and silenced in relation to his whistleblowing complaint from September 2018

His stated loss of earnings stood at €225,000 plus €10,000 out of pocket expenses. He was compelled to move to another University.

CA-00055669-001 Claim for contravention of the Terms of Employment (Information) Act, 1994

The Complaint outlined that the contravention of the Act was not confirmed until March 22, 2023, when he received a long-requested statement of account from the respondent which detailed a research fund grant of €50 ,000 paid by his Research Sponsor to the University.

The Complainant had made multiple data access requests.

The Complainant had not been provided with terms in advance of his employment or a contract of employment. He exhibited a contract template.

He outlined that was obstructed by the Respondent in making his claim before the WRC as they deliberately ran down the clock by institutional stonewalling.

The Complainant made this complaint one day after receiving confirmation of his employment status on March 23, 2023. Therefore, the complaint was in time.

He rejected the Respondent defence on statutory time limits.

Application for Special circumstances at the commencement of the hearing

The Complainant made application for an anonymised decision. I explained the background to the discretion held in relation to a departure from the “open justice principle” through the legislative amendments to the Workplace Relations Act, 2015. I informed the complainant I would require reasons to accompany his application.

The Complainant stated that the case involved sensitive issues and for that reason he sought special circumstances.

I asked the Respondent for their response, and they had no objection. They requested that any reported reference to the subject of the sexual harassment complaint by anonymised.

I explained that I would consider the application for special circumstances and would let the parties known as the preliminary issue was tabled by the Respondent. That was accepted by both parties.

I subsequently confirmed to both parties, that after careful consideration in the break, I was prepared to grant special circumstances and anonymise the decision, I asked the parties for suggested titles, but no suggestions were forthcoming.

 I confirmed that I was prepared to anonymise the subject matter of the September 2018 complaint.

Both parties accepted this decision.

Complainant response in evidence to Preliminary Issue:

The Complainant expressed an extremely strong contention that his claims were in time and did not deviate from that contention at any time during the hearing.

He submitted that consideration should be given to the fact that he was unable to prove that he was a worker until he received the data protection detail on the grant (exhibited as 201707 invoice 17-017 fees 9) on 22 March 2023) He outlined his pursuance of clarity of his status as a worker)

The Complainant submitted he was in time because the crucial F1 descriptor form had been destroyed by the University. The University countered this by saying that it was removed by habitual churning accordance with regulations.

The Complainant submitted that the concept of student and worker were not mutually exclusive.

He denied withdrawing his complaint of sexual harassment and instead submitted that he had been denied representation and had been constructively dismissed. He described a process where he believed that he had been managed out through a number of negative interactions around language proficiency, leave of absence denial and supervision. These were the issues at the fore front of his mind. By September 25, 2018, he no longer had student approval and started a new Ph D on a new site.

The Complainant alternated between discussing the details of the instant complaints and the complaint of sexual harassment and was asked to clarify if he had considered processing that latter complaint to the WRC? He replied that he didn’t know he could.

 The Complainant confirmed that he had not appealed his dismissal.

He was highly critical of the 2021 Review conducted by an external person.

When asked when he had decided to take a case to the WRC, he replied September 2022 and added that he lodged the case “when he was able “

The Complainant, in denying his withdrawal of the sexual harassment complaint referred to an email from the Director of Human Resources at the University, he was asked to cross match that in his papers and could not locate it.

He confirmed that his first data access request was lodged in September 2020.

He maintained that he was an employee during his time at the University and he had “done work “in photography and lectures there.

He had not submitted a query on testing his employment status to SCOPE at Dept of Social Protection.

During cross examination, he denied that all time limits were defeated in the case and placed the circumstances of his constructive dismissal in September 2018. He recounted the obstacles he had faced at that time by nominal supervision and lack of authority to sanction his application for leave of absence.

When asked by Mr Mc Carroll what he was doing from September 2018 onwards? he replied that he had registered for and entered a new Ph D.

As the Authorities relied on by the Respondent were not submitted prehearing, albeit they were flagged in prehearing correspondence, I offered the complainant some time to consider his response to these Authorities.

I offered 10 mins and that was accepted without a request for further time being made. The Complainant asked if he could remain in the room during this period. I declined his request and offered the parties the option of three available break out rooms and I remained in Hearing room 1.

I offered the complainant a jotter at that interval as he had come to hearing without that aide.

I asked the complainant to respond to the Respondent submissions on the preliminary arguments and he refused to comment on the Authorities for lack of legal knowledge. I reassured him that there was no requirement for legal knowledge to respond as these were stories of people’s lives and he was welcome to give an opinion on any relevance or application to his own case. The complainant seemed surprised by that invitation and did not engage on an on-point response.

I returned to this matter on another occasion, but the complainant did not respond to the respondent reliance on the Authorities.

During my request for a response to the Respondents oral and written submissions on the preliminary issue, the Complainant repeatedly deflected from the topic of my request and settled onto an account of the substantive case. I gently requested that he focus on the preliminary issue at hand.

In conclusion, the Complainant re-affirmed that both of his complaints were in time. He confirmed that there was an overlap in the earlier claim for constructive dismissal withdrawn in March 2023.

The Respondent operates a university which provides third level education across a range of disciplines and is one of Irelands leading Universities.

The Complainant enrolled as a Ph D student in September 2016 and moved to take up Ph D studies at a different university in September 2018.

The Respondent outlined two preliminary arguments within the substantive outline submissions on the claim being out of time and the complainants lack of employment status at the University, locus standi.

The Complainant engaged with the Student Ombudsman in the later part of his first year of studies. He was provided with the informal or formal pathways, for the not as yet submitted formal complaint.

The Complainant raised issues with his Supervisor, Dr M on the supervision of his doctorate and requested to change. The Head of School stepped in with an extern supervisor as the resolution targeted to address the informal dissatisfaction. This arrangement   prevailed into the following academic year.

The Complainant did not return to the University in academic year 2018 and transferred to a new University where the extern assigned in University A became his supervisor.

On 3 September 2018, the complainant submitted a student complaint form of claims against Dr M on unsatisfactory supervision and three allegations of verbal sexual harassment centred on 2 December 2016, 24 January 2017, and 14 February 2017. The matter was progressed by the respondent under the Duty of Respect and Right to Dignity Policy.

On 25 September 2018, the Head of College and Director of HR met with the complainant under the informal procedure, which was unsuccessful and moved to a formal footing.

This involved Dr M being furnished with the complaint and permitted a response. Dr Ms’ response was received on October 11, 2018, and constituted a rebuttal. The Complainant was requested to respond within 5 days to enable the President of the University to decide on a formal investigation.

The Complainant did not respond, and the respondent issued a reminder.

On 7 November 2018, the Complainant responded by email.

“With reference to your email of the 2nd of November 2018, I have nothing more to add or subtract from the formal complaint, which I have submitted. Please note that I do not wish to be involved in any further internal processes, procedures, or investigations of the kind you have suggested as I am no longer a student at the University (anonymised) “

The matter ended there and almost two years passed.

On 21 September 2020, the complainant submitted additional information related to his complaint, in which described himself as a student.

The Respondent commissioned an investigation which concluded on 15 June 2021 and found that Dr Ms rights to natural justice and fair procedures would be significantly compromised should the matter be re-opened and therefore there would be a significant risk that an injustice would be done to him.

The Complainant has referred to himself as a student and has not asserted his position as an employee. He has also engaged in extensive correspondence with university employees, Ministers, and Ombudsman.

1.       CA-00054920 -001 Constructive Dismissal for having made a protected disclosure.

The Respondent representative referred to an earlier complaint for unfair dismissal lodged on 16 September 2022 and withdrawn by the complainant and not pursued.

Both that complaint and the instant complaint cite a termination date of 30 September 2018 and were submitted manifestly outside the time limits allowed.

2. CA-00055669-001 Terms of Employment (Information) Act, 1994

The Respondent submitted this claim was wrongly pursued as the complainant was not an employee. The Respondent denied that the complainant was “unlawfully as an employee “

The Respondent submitted that the claim was manifestly out of time.

Preliminary Issue:

The Respondent sought leave to open the Preliminary Objection that both complaints are manifestly out of time. The Outline submissions are taken as read on the topic by the complainant and the Adjudicator.

The Respondent contended that there was no statutory power available to the WRC to facilitate consideration of such late claims and to advance on both cases, the WRC would be acting ultra vires.

Mr. Mc Carroll outlined that the complainant had attended the university to engage in a PHD from September 2016 to 30 September 2018, when he transferred to a different university. He covered his own fees during academic year 2017.

During his time at the University, he raised issues of harassment which were processed through the University policy.

Mr. Mc Carroll submitted that the complainant was prevented from progressing in the case as the “claims are too late “

He referred to the 22 March 2023 release of information which amounted to an accounting statement of a fee grant, which had informed the complainants contention of his employment status. He argued that this could not delay the process set down by statute and jurisprudence. He said this was “insufficient to stop the clock “

Mr. Mc Carroll maintained that employment status was not necessary to lodge a data access request.

He submitted that the complainant had dropped his earlier parallel complaint, which was also out of time.

Mr. Mc Carroll put forward 7 Authorities in support of his defense on statutory time limits.

Sheehy v Moriarty UD 1264/2008 at Employment Appeals Tribunal

In that case, the complainant had pursued a prior   civil action of wrongful dismissal. The Respondent argued time limits and application of Section 15(3) of the 1977 Act. In 2008, The Supreme Court upheld the High Court judgement of Judge Mella Carroll from 2004, which had found against the complainant.

Mr. Mallon BL for the Respondent argued that “It was not open to the Tribunal to ignore the restrictions placed by statute on the exercise of its jurisdiction. “

Redundancy was paid in that case.

The Complainant and her representative argued that the Tribunal had the “power and authority “to hear the unfair dismissal case. The Complainant submitted that the actual date of dismissal was the Supreme Court decision of 23 April 2008 rather than 2002, but this was challenged by the respondent.

In the EAT determination of the preliminary issue:

The EAT captured that the complaint form recorded 25 July 2002 as date of dismissal with notice of appeal to EAT as 16 October 2008. The Tribunal set out their jurisdiction on both claims and their power of extension of time.

The Complainant argued that the civil actions at High and Supreme Court had “put a stay “on the date of dismissal until April 2008.

Mr. Mc Carroll drew the attention of the hearing to the determination of the EAT.

“The tribunal will always have regard to legal and constitutional rights in exercising its limited jurisdiction, but it cannot assume extra legal authority to hold a hearing into an alleged unfair dismissal claim which is statute barred. Such an action would be in fundamental breach of its powers and would, quite rightly, be overturned by the Courts.

In acknowledging the complainants great upset and distress and the respondent intention to pay redundancy, the EAT determined that in the absence of power or jurisdiction under either of the Unfair Dismissals or Redundancy Payments Acts, the appeal failed.

Bus Eireann v Group of Workers PTD 048 from 2004 on interaction of Rights Commissioner / Labour Court on preliminary issue.

Euro Parks Ireland ltd v Paul Scales EDA 2233, 2022, where Deputy Chair of the Labor Court Tom Geraghty, writing on behalf of the Court and held that “ignorance of the law was not an excuse for a failure to comply with its provisions “in terms of the circumstances a late appeal.

In    Dublin Enterprise and Technology Center v Gerard Daniel RPD 207, 2020, former Deputy Chair of the Labour Court, Caroline Jenkinson, determined that:

“The complainant cannot rely on ignorance of the law in seeking to extend the time limit in general, ignorance of one’s legal entitlements, as opposed to ignorance of the facts giving rise to those rights, does not excuse a failure to present a claim in time. “

Brothers of Charity Services Galway v O’Toole EDA 177 held that three complaints alleging discrimination on the age and gender grounds were statute barred and not saved by the complainant argument that internal procedures delayed the complaint.

HSE v Margaret Curran UDD 2315, 2023, where in a claim for unfair dismissal of 5 years gestation, was met by the Labour Court determination that “there was simply no scope for the Court to seek to extend its jurisdiction beyond 12 months and the decision of the Adjudicator was upheld.”

In Stapleton v Acushla ltd et al ADJ 37399, 2023, in a claim for contested constructive dismissal, the Adjudicator Emer O Shea distinguished.

 “a complaint to the WRC and a Data Subject Access request are separate and unrelated procedures and there was nothing stopping the complainant from filing his complaint with the WRC within the allotted timeframe of 6 months. “

The claim was found to be lodged more than 12 months from the date of dismissal and the Adjudicator declined jurisdiction.

In closing, the Respondent once more relied on the dates of employment submitted by the complainant on both of his complaint forms. The passage of time from 30 September 2018 to the date of claim for constructive dismissal on 7 February 2023 ruled the claim out on time limits.

The Complainants reliance on the now extinct F1 form was mistaken and misplaced.

Mr Mc Carroll requested the Adjudicator to take note of the duplicate claim for unfair dismissal lodged withdrawn by the complainant on March 7, 2023.

 The Respondent did not accept that a cause of action arose in the claim under terms of employment in March 2023 and drew from the legislative content of Section 41(6) of the Workplace relations Commission.

The Respondent disputed that the complainant was obstructed in taking either of the complaints to WRC by pursuance of subject access requests or for any other reason. He drew the attention of the hearing to the complainants editing of the Data Protection Commissioner letter of December 2022.

He once more drew on the time limits as they are set down in Section 8 of the Unfair Dismissal Act 1977 and Section 41(6) and (8) of the Workplace Relations Act 2015 respectively.

The Respondent concluded that the case in its entirety.

1. CA-00054920 -001 Constructive Dismissal for having made a protected disclosure

2. CA-00055669-001 No Statement of core terms of employment

 must fall as statute barred.

I have been requested to make a decision on the Preliminary Arguments in two complaints received by the WRC on 7 February 2023 and 23 March 2023.

I acknowledge that the Complainant withdrew an earlier complaint of unfair dismissal in March 2023.

In reaching my decision in this Preliminary matter, I have read and considered the outline submissions of both parties. I have listened to and considered everything I heard at hearing.

I have also read post hearing correspondence issued by the Complainant to the WRC and others, all of which was shared with the respondent.

I have granted special circumstances on anonymisation of the parties on the complainant’s application.

 CA-00054920 -001 Constructive Dismissal for having made a protected disclosure.

CA-00055669-001 Section 7 of the Terms of Employment (Information) Act 1994

To introduce and explain my role in this case, I am at Workplace Adjudicator at first instance. I explained this to the parties at hearing.

My appointment arises from Section 40 of the Workplace Relations Act, 2015

Adjudication officers

40. (1) Subject to subsection (2), the Minister may appoint—

(a) such and so many of the members of the staff of the Commission, and

(b) such and so many other persons,

as he or she considers appropriate to be an adjudication officer or adjudication officers for the purposes of this Act.

Section 40(8) provides.

 (8) An adjudication officer shall be independent in the performance of his or her functions.

The April 2021 Supreme Court decision of Zalewski v Adjudication Officer and WRC [2021] IESC 24, referenced in the notification of hearing papers is highly informative on the impetus for transition in our service from 2015.

 This culminated in the legislative developments of July 2021, the Workplace Relations (Miscellaneous Provisions) Act 2021, where WRC hearings were opened to the public, an oath or affirmation provided to accompany evidence, parties were now named in decisions and subsequently in the Criminal Law, Perjury Act, 2021, penalties applied for false testimony.

This has been a seismic but successful shift in our service, and I respect that change.

If the parties wish to understand my point here further, I will guide them to the now Chief Justice O’Donnell’s remarks in the Zalewski decision at para 147. He singles out the Civil Servant Adjudicator for a special mention on maintaining independence in decision making.

He also captures the WRC serves to determine civil rights and obligations for the purpose of Article 6 of the European Convention of Human Rights.

I prepared for and approached this case mindful of all of this and with, a demonstration of an unconditional positive regard for both parties at hearing.

However, I am aware that I exercise a statutory power and I must work with the parties within those defined legislative walls. I must stand in my own truth as I consider 5the facts raised by both parties.

I keep Tom Bingham’s “The Rule of Law “on my desk and I quote Sunday Times v United Kingdom 1979 2 EHRR 245, when the European Court of Human rights in Strasbourg remarked.

The law must be adequately accessible , the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case …..a norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct , he must be able , if need be with appropriate advice ,to foresee , to a degree that is reasonable in the circumstances the consequences a given action may entail .

To that end, the WRC makes available a very user-friendly guide to advancing cases before Adjudicators. Recently, the WRC has circulated user friendly animated guides of what to expect at an adjudication hearing.

Legal Drafters have as their objective to avoid misunderstanding or judicial misinterpretation.

Fairness in Adjudicative procedures are based on three principles in Lord Bingham’s viewpoint.

1 Fairness to both sides, not just one

2 fairness is constantly evolving, not frozen in a moment in time.

3 independence of judicial decision makers

All of this is predicated on the maxim   of “Equality of Arms “and that is the reason that I asked both parties to provide their respective outline submissions prehearing. That is why both parties were invited to outline their positions at hearing.

It is part of the course that parties don’t agree on everything, however, I have found that it is vital to listen to and hear from both sides in my work. I must also ask questions   to guide my inquiry. It is open to me to draw inferences from those questions, however, in the main, I am in pursuit of facts.

To assist further, I provide a number of generic headings I typically call on to navigate the management of a case. I say this in full respect that the parties themselves own the case and I manage it at first instance.

Is the case safe within the statutory time limits?

What happened?

When did it happen?

Who saw / heard / made a record of it?

What documents are available to probe?

How do the parties place a context, background to what happened and what was the impact?

What do the parties contend the law says in respect of these facts?

What does the law say, in respect of these facts?

What remedy is sought / responded to?

As the parties can see, this is a collaborative process, where both parties and the Adjudicator listen, hear, articulate, and respond.

Preliminary Issue

In the instant case,

The Complainant has set out his claim for constructive dismissal following submission of a protected disclosure. He has confirmed that he submitted an earlier complaint of constructive dismissal in September 2022, since withdrawn in March 2023. He has supplemented the first claim with a claim in respect of not receiving a core statement of his terms of employment. These are the clear facts advanced.

The Respondent has rebutted both claims and has articulated a defence of statutory time limits in both Acts which seeks to place both cases outside statutory time limits.

During the hearing, I drew the parties attention to the statutory definition of constructive dismissal as provided for in Section 1 of the Unfair Dismissal Act, 1977.

In advance of the hearing, I had written to both parties to explain that I would commence the hearing on this Preliminary Argument and sought submissions in response to the respondent first outline submission. The Complainant argued that the respondent was mistaken in their views.

The Complainant made very strong objections to the preliminary argument, and I felt it necessary to take evidence of his recollection of what happened for him during the period September 2018 to February / March 2023. I did this as I was found a distinct lack of consistency on the date of dismissal relied on by the complainant, which ran side by side with a referenced contested dismissal and employment status by the respondent.

 I observed that the complainant  had a tendency to depart  from  one chronological event to another without a visible sequence  or apparent application to the  issue being discussed .I understand that he was new to the hearing  procedure and  I drew  from the axiomatic line from “ Banshees of Inisheerin”  to assist ,when I requested that  the complainant “  not skip ahead “ and stay on the preliminary issue .

The Respondent did not lead evidence on this preliminary point and worked from written submissions and case law.

I now understand the complainants points more having listened carefully to his evidence.

As I consider this preliminary point, I also wish to outline the law which has come from the Oireachtas under the Separation of Powers function.

The main piece of legislation governing limitation periods in Ireland is the Statute of Limitation 1957. Time limits in employment law cases vary from those parameters.

Limitation periods fix the time limit within which legal proceedings may be brought. They are necessary to provide for finality and certainty and avoid persons and entities being faced with potential claims indefinitely.Limitation periods in Ireland, Practical Law, Hayes Solicitors, Dublin

They go on to caution on the importance of observing time limits in a case.

CA-00054920 constructive dismissal

In claims for Statutory Unfair Dismissals, the statutory time limits are set down in Section 8 (2) of the Unfair Dismissal Act, 1977, as amended.

(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 Generalto the employer concerned as soon as may be after the receipt of the notice by the Director General

The power to extend time to the uppermost extreme of 12 months post dismissal is set down in Section 8(2) (B)

In the instant case, a high level of dispute exists amongst the parties on when the dismissal occurred, if at all.

 This is a claim for constructive dismissal, where the burden of proof in a substantive case rest with the complainant that his dismissal was an involuntary action through contract or unreasonableness.

The Complainant has introduced his commencement in employment date in both complaints as:

September 1, 2016 (This a key date in the second complaint)

The Complainant has introduced and confirmed his termination   in employment date in both complaints as:

 September 30, 2018.

 He placed a context for this as having been managed out of his Ph D through the submission of a protected disclosure on 3 September 2018. The Respondent has disputed employment.

In the alternative, he has argued strongly that his lack of awareness of his employment status and the respondents deliberate attempts to withhold this information from his subject access reports allowed him an allowance of time in which to plead unfair dismissal and a contravention of the Terms of Employment (Information)Act, 1994.

 He said he wasn’t aware of a contravention of the legislation until he finally secured an accounting spread sheet on March 22, 2023. He said that this spread sheet served to confirm that €50,000 had passed from a sponsor to the University linked to his name in 2017. (Date on exhibit).

 He did not pro-offer a further submission to cover his second year, where the respondent said that he paid fees. I noted that the Complainant did not draw a comparative analysis between the application of employment law between both of the Universities he attended at Ph D level .

  I have some difficulty with the second argument in the alternative.

The question directed at the complainant throughout the hearing was what prevented him from making his unfair dismissal claim within first the 6-month period from 30 September 2018 and secondly how did circumstances of reasonable cause to a zenith of two months post dismissal assist an extension of time by equity?

It was important for me  to take evidence in this case.

Under cross examination, the complainant freely admitted that he mobilised to a new University and a new Ph D from September 2018 onwards.

He did not give an opinion on any of the cases put forward by the respondent, who I must say adopted a very empathetic approach to his delivery of these cases over approximately 30 minutes. Mr Mc Carroll was open to questions and clarifications throughout. As I was familiar with some cases cited, but not others, I asked for some clarifications myself on the breadth of delays and reasons for these  relied on.

I was disappointed that the complainant did not give an opinion, as I really wanted to know whether he agreed with these Authorities or not. I appreciate that I gave a short break for him to consider the cases and the complainant did not ask for more time.

I was concerned that the complainant clearly viewed the case law offered in defence of the respondent position as irrelevant. For me, it was a representation of a defence worthy of consideration and response.

I would like to explain some background in where the Superior Courts have considered requests to extend time for good reason in Judicial review proceedings, from Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, which reflected proceedings pursuant to Order 84, Rule 21 of rules of Superior Courts 1986

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 clear that the test must be an objective one and the Court should not extend the time merely because the aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (what the plaintiff has to show … is that there are reasons which both explain the delay and afford a justifiable excuse for the delay

The Labour Court formulated a test for whether an extension of time should be granted in

Cementation Skanska v Carroll WTC 0338 in October 2003, approved in Minister for Finance v CPSU and ors [2007] 18 ELR 36

…. 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. Hence 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.

This is an important consideration and the test I explained at hearing.

Date of Dismissal is explained in Section 1 of the Act as

date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or the Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973,

(c) where a contract of employment for a fixed term expires without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited, but was, at the time of its making, incapable of precise ascertainment), there is a cesser of the purpose, the date of the expiry or cesser.

I understand dismissal is disputed in this case, but I am clear that the case opened with the complainant agreeing that his employment ended on 30 September 2018 in response to the protected disclosure of 27 days earlier and an incremental and deliberate managing out by the Respondent. I did not have the benefit of contemporaneous records of the complainant’s departure from the University from either party. I had not received documents of mitigation.

The Respondent has rejected both the employment status put forward and the claim for unfair dismissal.

The Preliminary Issue is the first fence of this case.

I must decide if the complainant can jump this fence to continue in the case.?

I have listened carefully to both parties, and I have read the outline submissions. I have drawn inferences from the complainant’s inconsistent approach to my request for the Ministers advice which he attributes as the reason he submitted his complaint to WRC in February 2023.

In my consideration of this matter, I have drawn from chapter 10 of Hogan Morgan and Daly, Administrative Law in Ireland, 5th edition, 2019 on the fundamental principles of judicial review.

In Bank of Scotland (Ireland) v Employment Appeals Tribunal. [2002] IEHC 119, a case of Judicial review

Section 8(2)(a) of the Unfair Dismissals Act 1977 (as amended by s.7 of the Unfair Dismissals (Amendment) Act 1993) provides that any claim made under the Act must be made within six months of the dismissal (save where exceptional circumstances explain the delay).

This referred to the test prior to the 1993 amendment.

 Here the dismissed employee had made the claim six months and one day after the dismissal, but the Tribunal nonetheless concluded that it had jurisdiction, apparently because it took the view that the dismissal had actually taken place one day later.

 Ó Caoimh J. held, however, that the making of a claim within the six-month period was a condition precedent to the holding of a substantive hearing by the Tribunal and accordingly quashed its determination that it had jurisdiction in the present case.

 The EAT sought to rely on the line of authority characterised earlier as “grant of jurisdiction”; in other words, that it had been granted exclusive jurisdiction to determine questions of this nature. However, Ó Caoimh J. responded that the statutory framework here was not sufficiently ample in granting power to the Tribunal, so there was no grant of jurisdiction.

The authors direct that “everything depends on what the statue says “in considerations on jurisdiction.

The statement of the law by the EAT in UD 1264 is profound  and persuasive on the Tribunal having regard for constitutional and legal rights against a definitive statement that it could not depart from the parameters of the law in a claim that is statute barred .It Is not lost on my that Mr ORiordan BL and EAT Deputy Chair carried a visible empathy for the complainant in the case , but was overtaken by what the statute said .

In Euro parks, a more recent determination, the Court set down the lack of acceptance for

 “Ignorance of the law “as an impediment to making a complaint to the WRC.

The Complainant in the instant case had access to a Solicitor as far back as September 2018. He made Subject access requests as far back as 2018 and 2019.

 Given, that the complainant made a number of references to the unresolved complaint of sexual harassment, I asked him if he had considered channelling the complaint of sexual harassment to the WRC at any time? He stated that he did not know he could do that.

 I found a clear blurring in the historical detail of the circumstances of both that issue and the extant claim for constructive dismissal. I found that the complainant seemed confused on that matter.  

Having listened carefully to the complainant, I find that that the matter of the sexual harassment complaint remains an unresolved issue for him. It clearly weighs heavy on him to the present day, and he has not accepted the June 2021 review.   A careful reading of this review reflects that there were many issues present in the September 3, 2018, complaint outside of sexual harassment.

  I was compelled to repeat to the parties on a number of occasions, throughout the hearing, that I was being territorial in the claims within my Inquiry. There was no live claim of discrimination before me and my role in the case is solely to record two decisions on submitted complaints.

I cannot accept that the complainant was obstructed by the Respondent in placing his claim for unfair dismissal before the WRC in the 6 or 12 months after 30 September 2018. I could not establish from the evidence adduced that the complainant considered this cause of action at any time during that period.

 He told me that he first decided to take a claim for unfair dismissal in September 2022. By then, he had registered his dissatisfaction with the outcome of the June 2021 review and had activated a number of subject access requests. This constituted the withdrawn parallel complaint.

 I must conclude that the claim for unfair dismissal so long after the date of contended dismissal has been constructed as a counter action to the dissatisfaction which flowed and continues to flow from the 2021 internal review. For the complainant, they are clearly inextricably linked.

I have not identified any set of cogent circumstance that delayed the complainant in placing a complaint of unfair dismissal before the WRC from 30 September 2018 and February 7, 2023.

He has not excused the delay to my satisfaction and even at its highest, I cannot extend the time for him to allow the protection of the statutory time limits. I must be bound with what statute says.

Neither can I accept that the complainant can capture the facts of a dismissal and rely on them in law as having occurred on 23 March 2023, or other notional dates around that time, as that date postdated his complaint of February 7, 2023.

 It was open to him to submit a claim at any time after 30 September 2018 and before 29 September 2019 through the equitable remedy of reasonable cause. He was not prevented from doing so.

The Complainant is mistaken when he relies on a presumption that he believes that he has to validate a contravention in law before he submits a complaint to the WRC. That is not the case. He is required to submit a factual opinion that a contravention of the law may have occurred. Particulars can follow prehearing.

 He can then anticipate a response or defence from the Respondent and a participative Inquiry into what happened from the WRC Adjudicator. A decision will then follow, appealable by either party to the Labour Court.

He is not expected to be a Judge in his own cause.

I must find that the employment understood by the complainant to be live on 30 September 2018 is the last date of that employment and the basis for the claim for the constructive dismissal.

I am fortified in that view by the complainants own clear recall that he stated that he was managed out at that time on foot of his protected disclosure and did not return. I have no tangible facts to deflect me from this.

I find that the complainant erred in the delay which ensued from 30 September 2018 to 29 September 2019, in not submitting his complaint within the statutory time limit allowed or an extension of 6 months through the equitable doctrine of reasonable cause.

I cannot accept that a stand still agreement can be applied to the circumstances where the delay is attributed   in establishing proof of his employment.

 One of the longest running cases in employment law in Ireland, John Barry and ors v Minister for Agriculture and Food [2015] IESC 63 remitted the complex distinction between direct employment and self-employment on redundancy and other claims back to the EAT. The issue of determining employee status of these temporary vet inspectors was a live issue over almost a 10-year period and a myriad of EAT, High Court and one Supreme Court decisions, but not controversial on time limits.

I have to decide this Preliminary issue. I find that the complainant is somewhat lost on the status of a complaint made to the University in 2018.

However, I must find that he is   unfortunately misinformed and mistaken on the statutory time limits which pertain in this complaint as the complaint received by the WRC on 7 February 2023 falls outside the statutory time limits applicable under Section 8 of the Act and cannot be saved by the equitable remedy of reasonable cause.

I conclude that I have no legitimate jurisdiction to investigate this complaint as the complaint is statute barred.

It is not possible for me to proceed in the case.

CA-00055669-001 Section 7 of the Terms of Employment (Information) Act 1994

The Complainant has submitted that he was not provided with a statement of his employment by the respondent.

The Respondent has submitted that the complaint is out of time.

The law relating to this case is provided in Section 41(6) and (8) of the Workplace Relations Act 2015

 (6) 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 6 months beginning on the date of the contravention to which the complaint relates.

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.

Once more, I have to consider the timing of submission of the complaint in this claim and this claim was received by the WRC on 23 March 2023.

The Respondent has relied on Kerrs Irish Employment Law when he refers to a potential to submit a complaint at the end of an employment, which did not issue a statement of terms. This would then pursue a continuous or subsisting breach of the legislation.

The Complainant has been very clear throughout the hearing that the contravention must rest on the day he was notified of the €50,000 transfer of grant fees on the data access request.

This stands in conflict with the dates agreed for the duration of the employment by him at the beginning of the hearing.

The Respondent has disputed any employment status ever existed.

For me, I cannot recognise the complainant’s submission that the “clock should start to tick “from the date he learned of the transfer of the grant fees.

While the statutory obligation in 2016 rested on the employer to issue signed written terms of employment within 8 weeks of commencement. In truth the clock should have ticked from 2 November 2016.

I must be guided by the wording of the statute at Section 3 in that regard.

Even if I were to look at the facts raised as a termination of employment of 30 September 2018, by application of either Section 41(6) or (41(8), extension by reasonable cause, the claim lodged on 23 March 2023 cannot be saved on time limits.

Once more, I say I cannot identify just why the complainant could not submit a claim within the statutory time limits and I do not accept that he was obstructed in that regard. Once more, I find that this claim appears to be a residual issue to the unresolved complaint made on September 3, 2018.

A careful reading of the file shows 2018, 2019, 2020 complaints to the University under data protection regulations by the complainant as a student.

The complainant confirmed in evidence that he moved Universities in September 2018. It is most likely that he began to engage in his new Ph D at that time.

However, I must find that he is   unfortunately misinformed and mistaken on the statutory time limits which pertain in this complaint as the complaint received by the WRC on 23 March 2023 falls outside the statutory time limits applicable under Section 41(6) and 41(8) of the Workplace Relations Act, 2015 and cannot be saved by the equitable remedy of reasonable cause.

I conclude that I have no legitimate jurisdiction to investigate this complaint as the complaint is statute barred.

It is not possible for me to proceed in the case.

CA-00054920 -001constructive dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have no legitimate jurisdiction to investigate this complaint as the complaint is statute barred. It is not possible for me to proceed in the case.

CA-00055669-001 Section 7 of the Terms of Employment (Information) Act 1994

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Term s requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have no legitimate jurisdiction to investigate this complaint as the complaint is statute barred. It is not possible for me to proceed in the case.

Preliminary Issue of Statutory Time Limits