ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048447

Parties:

Complaint(s):

Date of Adjudication Hearing:  23/01/2024

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Preliminary Matter:

On the 30th of January 2024 the Complainant as requested detailed by date an amount that he claimed was unlawfully withheld.

The Complainant submitted that he undertook 251 hours of overtime during August to December 2023 and is owed €22757.32.

This was copied to the Respondent.

On the 14th of February 2024 the College replied. All the work referred to in the letter dated 30th January 2024 and submitted on behalf of the Claimant was contractual work, i.e. it was work carried out by the Claimant pursuant to the terms of his contract of employment. The Claimant worked 251 timetabled hours during the period of August – December 2022, as evidence by the timetable of work he himself submitted to the WRC at the hearing of this matter on 23 January 2024.

The Claimant it is alleged was paid in full for the work he carried out with the Respondent during this time. The Respondent resubmits that, notwithstanding their Responding Statement, the Claimant’s claim is out of time (pursuant to Section 41(6) of the Workplace Relations Act 2015) and the Claimant has not demonstrated a reasonable cause allowing for the claim to be entertained at this stage (as required by Section 41(8) of the 2015 Act). The Claimant’s claim it is alleged, is entirely without merit and, in light of the repeated failure of the Claimant to particularise and/or set out a basis for his payment of wages claim, the Respondent submits that the claim is frivolous and/or vexatious and is not well-founded.

Reasonable Cause:

The onus is on the Complainant to show that there were good reasons for the delay and factors existed that also prevented or inhibited the timely presentation of the complaint. Generally, the longer the delay, the onus is on the Complainant to explain why the lengthy delay occurred outside the initial statutory limit and also to show those circumstances also caused the complaint to be lodged late. The Complainant at the hearing was afforded an opportunity to do that and explain the reasonable cause for the delay.

That evidence principally related to his mental wellbeing and health, detailing depression, and anxiety for the duration of this period and a family bereavement as the reasons for the delay and that also caused the delay. He also stated that he was not able to pay for legal advice and that was also a factor.

While the Complainant has relied upon his mental wellbeing to explain the delay, no medical evidence was presented at the hearing, such as a professional medical opinion to support this reason and how that explanation provided a reasonable cause as required by the case law.

 The Respondent clearly put in issue the Complainant’s personal statements as meeting the legal test as determined by case law.

The Complainant has not provided this tribunal with an explanation that would allow it to extend time; this is particularly so when that explanation is not accepted by the Respondent. This puts the onus on the Complainant to provide evidence to support the case to extend time. That threshold to present evidence independent of the Complainant’s own opinion has not been met and does not meet the required evidential threshold that could support the application to extend time.

Extension of time:

I note in Regan 2nd Ed Employment Law (Bloomsbury 2017) Anthony Kerr SC states at 28.24:

“The case law of the Labour Court demonstrates that, with the exception of employment equality cases, a complainant must not only show that ‘reasonable cause’ was present but also that it prevented or inhibited the timely presentation of the complaint.

Cementation Skanska v Caroll DWT1017/2013 is the leading case cited relating to the threshold that the Complainant must meet when relying on reasonable cause to explain the delay.

“…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 [or she] would have initiated the claim in time.”

In Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:

In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" 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 that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was 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. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."

The test is an objective one and importantly the case law requires that the tribunal should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings.

On the facts presented at the hearing the Complainant has not made out a reasonable cause to explain the delay based on evidence and arising from this conclusion I must find that time cannot be extended. I determine that the complaint is out of time and misconceived.

As explained Delaney and McGrath on Civil Procedure 4th Edition 2018 misconceived means:

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

As no reasonable cause has been made out so that time could be extended, I find that the complaint was lodged out of time and therefore I have no jurisdiction to hear the complaint.

As I have formed the opinion that the complaint has been made out of time; therefore, the matter is legally misconceived, and I dismiss the Complaint.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint.

Dated:   25/04/2024

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: