Complainant

Respondent

Parties

Conor  Ryan

Commission Of Inquiry into Child Abuse

Representatives

Cliodhna McNamara Forsa Trade Union

Ms Claire Bruton BL instructed by Bronagh Sawey, Ivor Fitzpatrick & Company Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055007-001

12/02/2023

The Complainant was employed with the Commission of lnquiry into Child Abuse (CICA) as a Clerical Officer with effect from the 8th of June 2005, employment ended on 13th July 2022.

This complaint was received by the Workplace Relations Commission on 12th February 2023.

Introduction.

1. Conor Ryan was employed with the Commission of lnquiry into Child Abuse (CICA) as a Clerical Officer with effect from the 8th of June 2005 and was on 48 rolling contracts for a period of 17 years. Conor's most recent contract of employment with the CICA. Although Conor was never issued with a formal Contract of lndefinite Duration there is an acceptance and understanding that he was on a Contract of lndefinite Duration at the end of his employment. We do not believe this will be disputed. Conor received correspondence on the 6th of April,2022 advising him that as a result of the’ significant reduction in the workload and the needs of the CICA, the position to which he was appointed pursuant to the CICA Act 2000, ceases to exist and that he is at risk of redundancy'... Conor was dismissed from employment on the 13th of July,2022.

2. The correspondence commences a consultation process but at no time were Forsa contacted with regard to the proposed redundancy situation that existed in the CICA despite the fact that the Secretary was aware that Forsa represented employees in the CICA.

3. Forsa contends that while the CICA claim that Conor was legitimately made redundant, the circumstances constituting the redundancy applies equally to all employees and Forsa are aware of least one of Conor's colleagues was not subject to any redundancy process and is still working in the CICA which implies that the redundancy process applied to what were deemed to be contract staff only, but this is still not clear.

4. As referenced, the employer did not consult with Forsa and therefore did not present an opportunity to Conor directly to discuss the selection process for redundancy with Forsa. Forsa are unaware of the actual selection process and what occurred despite having corresponded with the employer in this regard.

5. Forsa further contends that ultimately the Department of Education and the Department of Public Expenditure and Reform have responsibility for Conor as an employee and so if Conor had been legitimately selected for consideration of redundancy, then an alternative role in the public service should have been explored but it was neither discussed nor explored. As a state employee, we contend that ultimately Conor should have been redeployed back into the civil and public service.

6. Had a genuine consultation process taken place prior to reaching a decision as to redundancy and there was no other option but to make Conor redundant, then Forsa would argue that the Collective Agreement for Redundancy payments in the Public Service should have been applied and it was not.

Conor's Recruitment into the CICA

7. Forsa recognises that in the public sector there are civil servants who serve government departments; civil servants who serve departments of State (civil servants of the Government) and those who serve other organs of State who are civil servants of the State. We recognise that while all civil servants are servants of the state, there are servants of the state who are not civil servants; those who serve a range of state bodies'

8. The Commission of lnquiry into Child Abuse was established on 23 May, 2000, pursuant to the "Commission to lnquire into Child Abuse Act 2000" and given three primary functions: *to hear evidence of abuse from persons who allege they suffered abuse in childhood, in institutions, during the period from 1940 or earlier, to the present day; *to conduct an inquiry into abuse of children in institutions during that period and, where satisfied that abuse occurred, to determine the causes, nature, circumstances and extent of such abuse; and *to prepare and publish reports on the results of the inquiry and on its recommendations in relation to dealing with the effects of such abuse.

9. Section 9 of the above referenced act provides for the 'Stoff of the Commission'.

Section 9.-

(1") The Commission may, with the consent of the Minister and the Minister for Finance, appoint such and so many persons as the Commission may determine to be members of the staff of the Commission

(2) The Minister may, with the consent of the Commission and the Minister for Finance, second to the commission such and so many of his or her officers, as he or she may determine and the Minister for Health & Children may, with the like consents, second to the Commission such and so many of his or her officers as he or she may determine, and o person so seconded shall be deemed for the purposes of this Act, to be, during the period of the secondment, a member of staff of the Commission.

(3) A person appointed or seconded under this section to a position shall hold the position upon and subject to such terms and conditions os the Minister, or the Minister for Health and Children (if the person was seconded by him or her) may, with the consent of the Minister for Finance, determine, being, in the case of a person so seconded, terms and conditions not less favourable to the person that those applicable to him or her os an officer of the Minister or the Minister for Health & Children, as the case may be.

Section 30 of the CICA Amendment Act 2005 held no amendment to Section 9 but provided reference to 'Employees' at Section 30.

Section 30. - (1) The Board shall have such and so many employees as it may determine with the consent of the Minister and the Minister for Finance.

(2) the employees of the Board shall be paid by it such remuneration (including Superannuation) and allowances for expenses as the Board may, with the consent of the Minister and the Minister for Finance, determine

(3) Employees of the Board shall be subject to such other terms and conditions of employment as the Board may, with the consent of the Minister and the Minister for Finance determine.

10. Despite the provisions of the legislation, it is our absolute understanding from our discussions with the Department of Education that the CICA falls under the aegis of the Department of Education and it is noteworthy that any discussions that were had with specific regard to renumeration in the form of an allowance for the admin grades for example involved discussions with the Department of Education and by extension the Department of Public Expenditure and Reform and we believe this is acknowledged by all parties and will not be disputed.

11. At the time that Conor was recruited into the Commission, there were approximately five civil servants ranging in grade from Principal Officer to Clerical Officer and a larger number of non-civil servants who were not administrative grades.

12. Conor was directly recruited into the CICA and commenced employment on the 8th of June 2005. ln and around 2013 / 2014 when the National Shared Services Office was set up on an administrative basis under the Department of Public Expenditure and Reform or upon establishment of the National Shared Services Office in 2017 (a statutory Civil Service Office) Conor was paid by the NSSO and was on the Civil Service Clerical Officer pay scale under the Department of Education vote.

 13. While Conor Ryan was not recruited through the normal recruitment process that civil servants are recruited under i.e., the Public Appointments Service (PAS), we propose that we will be able to demonstrate that Conor was for all employee purposes a serving civil servant by reason of pay and terms and conditions of employment. Notably, not all civil servants are recruited through the PAS anymore and a lot of government departments are recruiting clerical officers directly into their departments including the Department of Education.

14. For the purposes of this claim and other claims, Conor's direct comparator in his employment is his former colleague, Deirdre Kellett. Deirdre was recruited through the PAS as an Executive Officer and was assigned directly to the CICA and is not on secondment from any government department. Deirdre is a serving Civil Servant and was recruited into the CICA on promotion in 2008. We reference Deirdre as a comparator as Conor had been assigned Executive Officer duties for the last three years of his employment which in our view demonstrates that they were interchangeable. Failing this being accepted, we would contend that Conor is comparable to all other Clerical Officers in the Civil Service.

Conor's Employment

15.  Conor was assigned Clerical Officer duties and tasks during the course of his employment.

16. Conor progressed incrementally every year on the Clerical Officer pay scale in line with the terms and conditions of employment that applied to his colleague Deirdre Kellett and all other civil servants.

17. At the time of his dismissal from employment he was on the maximum point of the Clerical Officer scale i.e. (LSl 2). He had been acting into EO duties for approximately 3 years before his dismissal. He was acting into the EO role in the same way as Deirdre Kellett was acting into a Higher Executive Officer (HEO) role and the same terms applied to both acting roles in the context of the calculation of the allowance.

18.As referenced briefly, the CICA falls under the aegis of the Department of Education and it is our clear understanding from our discussions with HR in the Department of Education, that all control, supervision and responsibility for the governance of the CICA lies with the Department of Education and by extension the Department of Public Expenditure and Reform and that any and all decisions made about renumeration and allowances for example are sanctioned by the Department of Education and by extension the Department of Public Expenditure and Reform and given our discussions on this matter to date with the Department, we do not believe this will be disputed.

19. We propose that the test to establish who Conor's employer is/was hinges on who has the power to hire, who pay's the wages/salary, who has the power to dismiss and who has the power of control.

20. Forsa contends that we have demonstrated that the Minister for Finance (i.e., the now Minister for the Department of Public Expenditure & Reform) has the power to hire and that pursuant to the Act of 2000 and the Amendment Act of 2005, the CICA could not hire without the consent of the Minister for Finance.

21. We have established that Conor was paid as a Clerical Officer in the CICA, on the civil service Clerical Officer pay scale and paid by the National Shared Services Office, a statutory civil service department.

22. lt is also clear that the Minister for Finance i.e., the now Minister for the Department of Public Expenditure and Reform has the power to dismiss and is the appropriate authority in this regard albeit not evidentially tested.

23. lt is also clear, in our view that as it is accepted that the CICA is under the aegis of the Department of Education and they are responsible for the governance of the CICA then they have the power of control

24. What is also clear, is that the terms and conditions that Conor worked under were all that of the Civil Service. The FEMPI Act 2009 and all decisions that impacted on the terms and conditions of all civil and public servants also impacted on Conor in the same way as it did with every other civil servant and in the same way as it did with his colleague Deirdre Kellett.

25. As referenced in our introduction, we contend that Conor was unfairly dismissed by reason of redundancy.

The Complainant has submitted 3 complaints to the Workplace Relations Commission:

·       The Payment of Wages Act 1991.

·       Protection of Employees (Fixed-Term Work) Act 2003; and

·       Unfair Dismissals Act 1977 as amended.

The Respondent’s position is that they are the employer of the Complainant and not the second and third named respondents.

The Complainant’s employment was lawfully terminated by reason of redundancy with effect from 13th July 2022.

In addition, the Respondent notes that the claims under the Payment of Wages Act 1991 and Unfair Dismissals Acts 1977, as amended are misconceived as they fall outside of the jurisdiction of the Workplace Relations Commission.

In addition, the Respondent notes that within the written submission furnished by the Complainant on 17th April 2023, is not clear, the basis on which any claim of breach of the Protection of Employees (Fixed-Term Work) Act 2003 arises against the Respondent albeit that it responds to this claim for the purposes of clarity.

Commencement of Employment.

·       At all material times the Complainant was a member of staff at the Respondent, commencing his employment on 8 June 2005.It is accepted that the Complainant wasona numberofrollingfixedtermcontractsfora periodof17 years.

·       The Complainant was engaged and interviewed directly by the Respondent and was appointed and recruited by the then Secretary of the Respondent with approval from the Chairperson. At no time were either of the other Respondents, being the Department of Education and the Department of Public Expenditure Reform, involved in the selection and recruitment process and no approval for his appointment was obtained or required.  The Complainant was not appointed through the public appointment process and at no time was he appointed as a clerical officer or executive officer.

Contract of indefinite duration

·       A contract of indefinite duration-which the Complainant accepts he was engaged pursuantto-wasprovidedto theComplainantinJanuary2021.

·       This contract of employment provides that the employer was clearly the Respondent, the Respondent appointed the Complainant and his position was that of an administrator. His hours of attendance were 9:30-5:30pm, five days a week, and the working week was 35 hours exclusive of a lunch break. The Complainant's annual leave period per year was 22 working days per annum and his salary was €39,076 per annum with effect from 3 June 2020.

·       The contract also provides at paragraph 12 thereof that the employee was required to adhere to the Respondent's specific protocols/policies. The contract also provided that the Complainant's redundancy entitlements were calculated at the statutory rates as per the Redundancy Payments Act 2003, with the commencement date of 2005.

Employer of the Complainant

·       It is not the case that the Complainant was appointed as a clerical officer or executive officer, rather the previous secretary to the Respondent in May 2019 allocated additional duties to him. The reason for these duties provided to the Complainant was, on the basis of the wind down of the Respondent, another member of staff was to be redeployed by the Civil Service and as a result of the reducing working of the Commission winding down and there being little work for him to undertake, he could take on these extra administrative functions.

·       It is accepted that the Complainant received an additional allowance in return for these duties albeit that it is not accepted that he was an executive officer. A copy of the note for file of 14 May 20 I9, as per the submission of the Complainant is accepted to be accurate in this regard.

·       The terms and conditions of employment of the Complainant were not set and/or approved by the Department of Education and/or Minister for Education and/or the Department of Public Expenditure and Reform. The Respondent does not hold a Public Sector Recruitment Licence from the Public Appointment Service, so it does not have the ability in fact to recruit public or civil servants. In any event there are a number of differences between the terms and conditions of employment of the Complainant and a civil servant as follows:

·       The Complainant was not appointed following a public service appointment process.

·       The Complainant was appointed and recruited directly by the Respondent.

·       The Complainant did not receive the same annual leave entitlements as civil servants - as per his contract of employment he received 22 days annual leave per annum whereas had he been a civil servant he would have received at least 26 days annual leave.

·       The annual leave of 22 days was calculated on the basis of 20 days as per his commencement of employment with two additional days in 2011 being added to compensate for loss of privilege days.

·       The Complainant was not captured by the Haddington Road Agreement and the increase in hours within this agreement. His hours of employment remained as per his contract of employment being 35 hours per week.

·       The Complainant was not subjected to the PMDS procedure as per the civil service and rather his performance reviews were less rigorous in nature.

·       The Complainant was not captured or within the application of Circular 05/2018 being the arrangement for sick pay applicable to civil servants and rather was captured by the Respondent's sick leave policy which had a number of differences to the civil service circular including he was not subject to a chief medical officer examination, he did not have access to the employee assistance programme within the civil service, he did not have access to the critical illness protocol and he was not entitled to retire on grounds of ill health;

·       The Complainant was not a member of the civil service superannuation scheme applicable to pre 2012 civil servants.

·       As is evident from his contract of indefinite duration, the Complainant was subject to the Respondent's specific policies.

·       The Respondent will rely on the sick leave policy and the civil service sick leave policy as attached by the Complainant in his written submission to the Workplace Relations Commission.

Wind down of Respondent

·       The Respondent's report, known as the Ryan Report (the chair of CICA being Mr Justice Sean Ryan), was published its report in 2009. Thereafter the Respondent commenced a period of wind down and for the period of 2009-2019 it was engaged in the payment of legal fees for attendees before the Respondent and to clarify the issue of the retention of the records collated during the conduct of the Respondent's inquiries.

·       At its height the Respondent had over 70 staff, five or six of whom were civil servants and the remainder were contract staff. At all times the Complainant was engaged as a contract staff member and worked alongside other contract staff members such as CK - who had her employment terminated by redundancy at the same time as the Complainant, PB who had his employment terminated by reason of redundancy in May 2021 and COD who had employment terminated by reason of redundancy in March 2019.

·       The last of the legal payments were paid by the Respondent in 2019 and since that time the only work within the Respondent (and for the Complainant) was to prepare the records for storage pending legislation and these files have now been placed off site in a secure facility only accessible by the Commission.

·       Since 2019, there has been very little work for the Complainant to undertake and indeed it is noted that at the first consultation meeting in the redundancy consultation process conducted by the Respondent, the Complainant admitted same.        

·       In the course of 2021, the secretary to the Respondent, Hugh McLain, conducted a staff review. This followed the termination of employment of a previous contract employee, PB, by reason of redundancy. The Complainant was informed there was a finite amount of work within the Respondent, but the Respondent was seeking additional work from the Department of Education and Skills. The Complainant was also informed at this time that there was no change in his role at that time but there may be a reduced working week or voluntary redundancy towards the end of 2021.

·       In December 2021 and January 2022, the Complainant was informed by Mr McLain that there was no further information available regarding his position but that additional work from the Department of Education had been sought.

Redundancy process

·       In March 2022 the Respondent's Chairperson and Secretary considered that there was no work for contract staff and the possibility of redundancies was considered whether and part time employment could be offered but having regard to the eradication of the workload for the Complainant, this was not possible. In addition, having regard to the Complainant not being a civil servant, no right of redeployment existed.

·       Thereafter on 6 April 2022 the secretary to the Respondent, Mr McLain wrote to the Complainant to inform him that as a result of the significant reduction in the workload and the needs of the Respondent, his position of administrator, ceased to exist and he was at risk of redundancy. Thereafter a consultation process took place with meetings held between the Complainant and Mr McLain on 13, 20 and 27 April 2022.

·       At a meeting on 4 May 2022, the Complainant was informed that his employment would terminate by reason of redundancy and he would receive a statutory redundancy payment of €21,132, as calculated by Mr McLain, together with a ten week notice period (which exceeded the Minimum Notice and Terms of Employment Information Act 1973). A copy of the notes of the meetings of 13, 20 and 27 April, together with letter of termination of employment of 4 May 2022 were produced at the hearing.    

·       The Complainant completed a period of handover and was not required to work the full duration of his notice period having regard to the fact there was no work for him.

·       The Complainant's employment was terminated as a member of contract staff by reason of redundancy.

Legal Submissions

Unfair Dismissals Act 1997

o   The complaint form of the Complainant was received by the Workplace Relations Commission on 12 February 2023. In his submissions, the Complainant alleges that he was unfairly dismissed on the basis of the selection process not being clear and transparent and he should have been redeployed in the public as civil service.

o   The Complainant was informed of the termination of his employment on 4 May 2022 with the date of termination of employment being 13 July 2022. Therefore, any claim pursuant to the Unfair Dismissals Act challenging the termination of his employment should have been lodged on or before the 12 January 2023. In fact, the complaint form was lodged on 12 February 2023 and is therefore outside of the six month time period as per section 8(2) of the Unfair Dismissals Act 1977, as amended which prescribes as follows:

·       "A claim for redress under this Act should be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations subsection 17 of section 41 of the Act of 2015 to the Director General

(a)Within a period of six months beginning on the date of the relevant dismissal ... "

·       Whilst it is accepted that an extension of time is possible for reasonable cause as per section 8(2)(b) of the Act, no such application has been made by the Complainant or any recognition has been made within his submissions that his claim is outside of the required time limit.

·       The Respondent awaits any such application but would note that the Complainant was in receipt of advice from his trade union official, Ms McNamara of F6rsa. It is difficult, therefore, to see why the complaint was not lodged within the required time period. In Cementation Skanska v. Carroll5 the Labour Court held that:

"In considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must be sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in statute it suggests an objective standard but must be applied to the facts in circumstances known to the claimant at the material time. The claimant's failure to present the claim within a six month time period must be due to reasonable cause relied upon. Hence there must be a causal link between the circumstances cited in the delay and the claimant must satisfy the Court, as a matter of probability that had these circumstances not been present, he would have initiated the claim in time. "

·       The Respondent notes that the Complainant issued proceedings in May 2022, after he had been notified of his termination of employment but did not lodge his unfair dismissal claim within a timely manner.

·       Without prejudice to the foregoing, the position of the Respondent is that it is the employer for the purposes of the Unfair Dismissals Act and that the Complainant was not a civil servant. The Complainant was not subject to the Civil Service Regulations Act 1956 and in particular section 17 which prescribes that the minister is responsible for the following matters:

"(b) The classification, re-classification numbers and remuneration of civil servants, and (c)The fixing of the terms and conditions of service of civil servants".

·       The terms and conditions of employment of the Complainant are set by the Respondent, albeit funded by the Department of Education and Science. This is reflected in the payslip furnished by the Complainant at page 162 of his submissions which provides he was a contract staff member of the Respondent. The Supreme Court in the Minister for Education and Skills v Boyle6 held that the appropriate approach is to consider whether the employee had been engaged under a traditional contract of service. This was in order to identify the correct employer in the context of the tripartite relationship between a school, board of management and Department of Education. In this regard Clarke CJ held that:

"The ordinary meaning of the term of contract of service implies an arrangement whereby one party agrees to work for another and subject to the terms of the contract, under the control of that person as to how they carry out their work.  It should also be emphasised that any contract of service involves a reciprocal arrangement between employer and employee whereby the employee agrees to do work under the legitimate direction of the employer."

·       In the context of the Boyle case, the Supreme Court was not there to infer an employment relationship where the Department of Education and Skills controlled the financial aspects of the terms and conditions of employment as this was found to be limited financial control. The Supreme Court also noted that the employee in this case was not a member of the Department of Education's pension scheme, which has a clear application to the instant case in circumstances where Mr Ryan is not a member of the pension scheme available for public and civil servants.

·       The Respondent submits that the Complainant was dismissed wholly and mainly due to redundancy which constitutes substantial reason to justify the termination of his employment and a full defence to unfair dismissal in accordance with sections 6(1) and section 6(4) of the Unfair Dismissals Act 1977, as amended. In this regard reliance is placed on section 7(2) of the Redundancy Payments Acts 1967, as amended, which defines dismissal by reason of redundancy as follows:

·       ) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to-

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work/or which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

·       It is submitted that the factual matrix at the time of the Complainant's redundancy fits squarely within section 7(2)(c). The Respondent had cogent and genuine reasons for the eradication of the Complainant's role, and there was simply no work for the Complainant to undertake. In fact, this is accepted by the Complainant and indeed within the written submissions on his behalf it appears that there is criticism of the selection process for redundancy and also that he was not redeployed.

·       The termination of the Complainant's employment took place following consultation meetings where no submissions were made by the Complainant, although they were invited by the Respondent. In Jeffers v DDC Ireland Ltd', the Tribunal said that, where a person was being made redundant, there was an onus on the employer,

"(i)     to take reasonable steps to seek alternative employment within the company for the employee being made redundant, (ii) to know what positions, if any, are available on the relevant date, and (iii) to offer any such reasonable alternative positions to the employee whose position is becoming redundant".

·       This approach was respected by the Respondent and no alternatives to redundancy were put forward by the Complainant, The Respondent adopted an honest and transparent approach as indicated by the High Court in JVC Europe Ltd v Panisi, as being a hallmark to a redundancy by an employer. The Respondent considered alternatives to redundancy including the Complainant working on a part time basis and sought a workload from the Department of Education but this was not possible. Simply put, there was no work for the Complainant to undertake: in particular from 2019 when legal payments finished after which there was only file preparation work left, and hence for all intents and purposes the Respondent operated in name only with no work for the Complainant to carry out. The Complainant made no suggestions of alternatives and accepted that there was no role for him going forward, as is evident from the minutes of the consultation meetings.

·       Without prejudice to the foregoing, as per correspondence of 17 April 2023 (in response to a proof of loss letter sent on behalf of the Respondent), the following is disclosed on behalf of the Complainant:

"Conor has not been in employment since he was dismissed from the CICA and he has not been in a position to seek employment as he returned home to Galway with effect from September 2022 where he was needed in a caring role. He was also needed to assist a family member with her responsibilities.

Conor is in receipt of Job Seekers Benefit with effect from the 14th of July 2022 and was in receipt of €212.00 per week until the last budget and he now receives €220.00 per week to date. "

·       The mitigation of loss of the Complainant is inadequate. He has not sought any alternative employment and he is required, as per s. 7(2)(c) to mitigate his losses. In Sheehan v Continental Administration Co Ltd UD 858/1999 the Employment Appeals Tribunal also considered the question of mitigation of loss pursuant to subs.(2)(c). In its opinion, the onus of proof lay upon the respondent who must show that the claimant did not act reasonably in all the circumstances. In a significant determination, the Tribunal ruled that it was not reasonable to merely place oneself upon a list with various recruitment agencies. A more "pro-active" approach was required. The Tribunal continued:

"A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

·       Similar views were expressed by the Labour Court in Smith v Leddy UDD 74/2019 where it was said that the Court expected to see "evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment".

·       In so far as the Complainant seeks re-engagement/reinstatement, there is no position for him within the Respondent and this, it is submitted, it is an adequate reason for this remedy not to be awarded.

Conclusions

The following is submitted:

·       At all times the Complainant is not a civil servant and rather was a contract worker engaged as an administrator within the Respondent and the Respondent is the appropriate respondent to all of the three claims lodged with the Workplace Relations Commission.

·       The Unfair Dismissals Act 1977, as amended, claim is outside the statutory time period and should be dismissed on that basis.

The Respondent representative has objected to the hearing of this complaint based on the following:

Unfair Dismissals Act 1997

o   The complaint form of the Complainant was received by the Workplace Relations Commission on 12 February 2023. In his submissions, the Complainant alleges that he was unfairly dismissed on the basis of the selection process not being clear and transparent and he should have been redeployed in the civil service.

o   The Complainant was informed of the termination of his employment on 4 May 2022 with the date of termination of employment being 13 July 2022. Therefore, any claim pursuant to the Unfair Dismissals Act challenging the termination of his employment should have been lodged on or before the 12 January 2023. In fact, the complaint form was lodged on 12 February 2023 and is therefore outside of the six month time period as per section 8(2) of the Unfair Dismissals Act 1977, as amended which prescribes as follows:

·       "A claim for redress under this Act should be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations subsection 17 of section 41 of the Act of 2015 to the Director General

(a)Within a period of six months beginning on the date of the relevant dismissal ... "

·       Whilst it is accepted that an extension of time is possible for reasonable cause as per section 8(2)(b) of the Act, no such application has been made by the Complainant or any recognition has been made within his submissions that his claim is outside of the required time limit.

·       The Respondent awaits any such application but would note that the Complainant was in receipt of advice from his trade union official, Ms McNamara of Forsa. It is difficult therefore, to see why the complaint was not lodged within the required time period. In Cementation Skanska v. Carroll, the Labour Court held that:

"In considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must be sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in statute it suggests an objective standard but must be applied to the facts in circumstances known to the claimant at the material time. The claimant's failure to present the claim within a six month time period must be due to reasonable cause relied upon. Hence there must be a causal link between the circumstances cited in the delay and the claimant must satisfy the Court, as a matter of probability that had these circumstances not been present, he would have initiated the claim in time. "

·       The Respondent notes that the Complainant issued proceedings in May 2022, after he had been notified of his termination of employment but did not lodge his unfair dismissal claim within a timely manner.

It cannot be overlooked that the Complainant had the assistance of his full-time union representative and commenced proceedings with the Workplace Relations Commission on 5th May 2022.

I must now find that the instant complaint was not lodged within the six month time limit stated in legislation and for this reason I must now find that I do not have jurisdiction to consider the complaint.

I must now find that the instant complaint was not lodged within the six month time limit stated in legislation and for this reason I must now find that I do not have jurisdiction to consider the complaint.

Unfair Dismissals Act; Time Limits.