Complainant

Respondent

Parties

Carmel  Patton

Edmund Henry trading as Henry & Co Solicitors

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr. Michael Monahan,  Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00060462-001

11/12/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00060462-002

11/12/2023

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

CA-00060462-003

11/12/2023

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

CA-00060462-004

11/12/2023

The Complainant commenced employment with the Respondent on 13th November 2018. The Complainant was a permanent employee, in receipt of an average weekly payment of €384.30. The Complainant’s employment terminated on 15th March 2023 by way of resignation.

On 19th December 2023, some nine months later, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that she was compelled to terminate her employment as a result of ongoing adverse behavior on the part of the Respondent. While these allegations were fully denied by the Respondent, they submitted that the matter was out of time and could not proceed on that basis.

A hearing in relation to this matter was convened for, and finalised on, 26th July 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

In circumstances whereby the preliminary issue raised by the Respondent may be determinative of the entire proceedings, this will be considered in advance of the substantive matter.

By submission, the Complainant accepted that her complaint was lodged in excess of six, but fewer than twelve, months following the termination of her employment.

In seeking to extend the relevant period for the purposes of the present complaint, the Complainant submitted that it was evident that her former employer had subjected her to ongoing adverse treatment. In particular, the Complainant submitted that following the termination of her employment, she felt that she was in no position to refer the Complaint for a period of time. In this regard she submitted that her physical and mental health suffered as a consequence of the adverse treatment she had endured at the hands of the Respondent. In addition to the foregoing, the Complainant submitted that she had difficulty securing representation for the present matter, that she was obliged to secure alternative employment during the relevant period, and that she was initially unaware of the time limit for the referral of such complaints. In such circumstances, the Complainant asked that she be treated fairly and be allowed to proceed with the complaint as referred.

In contesting the Complainant’s application, the Respondent submitted that she had not established any reasonable cause that might permit the cognisable period for the purposes of the present complaint to be extended.

In this regard, the Respondent submitted that the Complainant has not set out any grounds that might qualify as reasonable cause for these purposes. In addition to the foregoing, they submitted that the Complainant had extensive experience of working in a legal environment and would be well aware of the operation of time limitations for the filing of complaints.

Regarding the present mater, it is common case that the complaint was referred some eight months following the termination of the Complainant’s employment.

In this regard, Section 8 (2) of the Unfair Dismissals Act, 1977 provides that,

“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 General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

In this regard, it should be noted that the relevant time limits, and the test for extending the same, are similar under the Workplace Relations Act.

The test for establishing such “reasonable cause” is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here the test was set out in the following terms,

“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 the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the 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 more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It 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 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. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

Regarding the instant case, when the issue of time was raised with the Complainant, she set out the alleged poor treatment she endured at the hands of the Respondent. In addition to the same, the Complainant submitted that she sought assistance from various legal representatives, however she was unable to secure representation as, in her view, solicitors were reluctant to take a case against a fellow solicitor. She further submitted that her financial situation was such that she was obliged to secure alternative employment during the six-month period. Finally, the Complainant submitted that she was unaware of the six-month time limit and should not be punished for the same. While the Respondent fundamentally disagreed with many of the submissions of the Complainant, they further submitted that the same cannot constituted “reasonable cause” for the purposes set out above.

Having considered the grounds set out by the Complainant, I cannot find that the same constitute “reasonable cause” for these purposes. While the Complainant submitted that she had difficult securing representation for the present complaint, this does not explain her apparent inability to refer the complaint within the six-month time period, particularly when she did so after the expiration of the same. While the Complainant stated that she felt that she was in no position to refer the Complainant for a period of time following the termination of her employment, the medical evidence opened by the Complainant did not demonstrate her inability to refer the present set of complaints within the relevant time period. In this regard it is noted that the Complainant was in a position to secure alternative employment during the six-month period. Finally, it is well established that ignorance of the time period for the referral of complaints cannot act as reasonable cause for the extension of the same.

As a consequence of the foregoing, I find that the cognisable period for the purposes of the present complaint is 19th June 2023 to 19th December 2023. As is it common case that no employment relationship exited in that time, I find that the Complainant is not well-founded.

CA-00060462-001 Complaint under the Terms of Employment (Information) Act

I find that the complaint is not well-founded.

CA-00060462-002 Complaint under the Industrial Relations Act 1946

I find that the complaint is not well-founded.

CA-00060462-001 Complaint under the Terms of Employment (Information) Act

I find that the complaint is not well-founded.

CA-00060462-001 Complaint under the Unfair Dismissals Act

I find that the Complainant was not unfairly dismissed by the Respondent within the cognisable period of the purposes of the Act.

Time, Extension, Reasonable Cause