TED2418

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00046774 (CA-00057290-004).

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 3 January 2024 in accordance with the Terms of Employment (Information) Acts, 1994 to 2012.  A Labour Court hearing took place on the 9 July 2024. 

DECISION:

This matter comes before the Court as an appeal of a decision of an Adjudication Officer in a complaint by Arkadiusz Brzezinski (the Appellant) against his former employer Aronmar Plant Limited (the Respondent) under the Terms of Employment (Information) Act, 1994 (the Act). The Adjudication Officer decided that the complaint was made out of time, and that she had no jurisdiction to hear the complaint.

The complaint of the Appellant was made on 21st June 2023.

The Complaint.

The Appellant submitted that the employer had breached the Act at Section 3(A).

Significant disputation arose before the Court as regards the dates upon which the Appellant actually attended the workplace after June 2022. None of this disputation was set out in the written submissions of the parties and, consequently, the parties could be regarded as not having been prepared for the hearing in a manner which could have easily allowed the Court to make findings of fact in relation to such matters as the parameters of the employment relationship or the dates of any alleged breaches of the Act. The employment of the Appellant terminated no later than November 2022

The Appellant made an application for an extension of the time allowed for the making of the within complaint in accordance with the terms of the Workplace Relations Act, 2015 (the Act of 2015) at Section 41. The Respondent submitted that no such extension of time should be permitted.

Having regard to the extensive disputation in relation to matters of fact, and the likelihood that the parties would require to make further and better submissions in order for a fair hearing of the substantive complaint to take place, the Court proposed to the parties that the matter of applicable time limits should be decided first and decision issued in that matter before convening a hearing of the parties in relation to substantive matters. Such an approach would mean that such a decision had the potential to dispose of the appeal in its entirety or, in the alternative, could lead to a further hearing of the Court to deal with the substance of the complaint.

Both parties confirmed that they agreed with this approach of the Court.

The law as regards Time limits.

The Act of 2015 at Section 41 makes provision in relevant part as follows:

41(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.

41(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.

Summary submission of the Appellant as regards applicable time limits.

The Appellant submitted that he was an injured non-national whose first language is not English. A salient feature of his complaint is that he was not given his contract and terms of employment and so could not have known what he was entitled to in law. He was therefore in a uniquely vulnerable position at the time of the contraventions giving rise to his complaint.

He submitted hat the explanations offered are reasonable in that they make sense, are agreeable to reason and are not absurd. The Appellant relied upon the decision of this Court in Cementation Skanska V Carroll DWT 38/2003 and its application to the facts.

He submitted that a demonstrable causal link exists between the circumstances cited and the delay and, had those circumstances not been present, he would have initiated his complaint in time.

Summary submission of the Respondent as regards applicable time limits.

The Respondent submitted that the complaint of the Appellant was made to the Workplace Relations Commission (WRC) significantly outside the time limit prescribed by the Act of 2015.

It was confirmed that the Appellant sought and was in receipt of legal advice in relation to his employment in September 2022, and that advice resulted in legal action being initiated in relation to an injury he had received. The Respondent submitted that this demonstrated that the Appellant was aware that he could make complaints against the company if he so wished. He made no complaint against the Respondent to the WRC until 21st June 2023.

The Respondent relied upon Cementation Skanska and Carroll and on O’Donnell v Dunlaoghaire Corporation (1991) ILRM 30 to contend that the test for extending time is an objective one that requires the Appellant to both explain the delay and to set out a justifiable excuse for the delay. In this case the Appellant had taken legal advice and initiated legal proceedings and there was nothing which in any way prevented or delayed him from making a complaint against the Respondent within time.

Discussion and conclusions

This Court has considered in some detail in many of its previous Determinations the correct meaning to be ascribed to the term ‘reasonable cause’ as the test for the justification for a delay on the part of a Complainant in referring complaints at first instance under employment legislation.

In Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425, this Court stated:

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

In the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. 

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In Salesforce.com v Leech EDA1615 the Court – having referred to the Determination in Cementation Skanska – stated:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay.”

In Galway & Roscommon ETB UDD1624, this Court decided as follows:-

“The Court is satisfied that the legal principle ‘ignorantia juris non excusat’ (“ignorance of the law excuses not”) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit.

While ignorance on the part of an employee of his or her statutory rights may explain a delay in submitting his or her appeal under the Act it cannot excuse a delay. In Minister for Finance v CPSU and Ors [2007] 18 ELR 36 the High Court held that ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.”

The Court notes that the Appellant obtained legal Advice in relation to his employment in September 2022. The Appellant contends that while this engagement of legal advice related to his employment with the Respondent, it was not related to the statutory complaints before the Court.

The Appellant submits that his delay in making his complaint is explained and caused by the fact that he was an ‘injured non-national’ whose first language was not English. He was not provided with a contract setting out the terms of his employment and consequently could not have known what he was entitled to in law.

This latter element amounts, in part, to a contention that the Appellant was ignorant of his entitlements in law because he was not provided with a contract of employment. No submission has been made as to how the contract of employment would have educated the Appellant as regards the application of the law to the matters forming the substance of the within complaint. In any event, by application of the principles set out in Galway & Roscommon ETB UDD1624 the Court concludes that his contentions in this respect fall short of demonstrating reasonable cause for the delay in making the within complaint.

No submission has been made that the factual reality that the Appellant was a non-national whose first language was not English had changed in any way prior to 21st June 2023. Consequently, it cannot be concluded that these underlying circumstances prevented or delayed the Appellant in making the within complaint at all or in in time. In any event, it appears that the probable import of the submission setting out these circumstances amounts to a contention that the Appellant was not aware of his legal entitlements notwithstanding his having taken legal advice and initiated proceedings in relation to his employment within the time limits applicable for the making of the within complaint. By application of the legal principle of ‘ignorantia juris non excusat’, the Court must conclude that these underlying realities do not amount to a reasonable cause justifying or causing the Appellant’s delay in making the within complaint.

The Court concludes that the Appellant has failed to demonstrate that his delay in making the within complaint was due to reasonable cause.

Decision

The Court decides that the within complaint to the Workplace Relations Commission was made outside the statutory time limits applicable and that the Appellant has not demonstrated that his delay in making the complaint was due to reasonable cause. The within appeal consequently fails.

The decision of the adjudication officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
13 August 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.