Worker

Employer

Anonymised Parties

A Worker

A Hospital

Representatives

  Self-Represented

Adrian Norton IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969

IR - SC - 00001412

26/05/2023

The Worker’s employment with the Employer commenced on the 2nd February 2004 and she was employed in the capacity of a Healthcare Assistant. On the 18th October 2022 she notified the Employer of her intention to retire from her role and she retired on the 11th November 2022. At the time of her retirement the Worker was paid €407.68 net per week. The Worker referred a dispute to the Workplace Relations Commission (hereinafter referred to as “the WRC”) under section 13 of the Industrial Relations Act 1969 on the 26th May 2023.

Preliminary Issue – Time Limits:

The Employer did not address the issue of time limits in its written submission in relation to the dispute under the Industrial Relations Act. Further, the Worker had not sought an extension of the time for reasonable cause. At the outset of the hearing I raised this issue with the parties and invited oral submissions. I explained that the circumstances in which an Adjudication Officer can investigate a trade dispute to which a retired person is a party is limited by section 26A inserted in the Industrial Relations Act 1990 and that a dispute must generally be referred within 6 months. I asked the Worker why she delayed in referring her dispute and whether she could show reasonable cause for any delay. The Employer’s representative outlined the Employer’s objection to the matter being heard on the grounds that at the date of the referral to the WRC the Worker was retired, her dispute was referred outside of the statutory time limit and she had not established “reasonable cause” that would allow the Adjudication Officer the discretion to extend the time limit past 6-months. I indicated that I would address the issue of time limits in the Recommendation.

The Worker represented herself and was accompanied by her daughter at the hearing. She submitted documentation in advance of the hearing and confirmed that she had received the Employer’s written submissions. At the hearing she outlined the background to her dispute and she responded to the preliminary issue regarding time limits.  

The Worker outlined that she wrote to the Employer on the 18th October 2022 putting it on notice of her intention to retire on the 11th November 2022 and that thereafter she sent letters of complaint to the Employer on the 24th October 2022 and the 7th  November 2022. The Worker retired on the 11th November 2022 and she believed that the Employer was dismissive of her complaints because she had retired. She did not receive a reply from the Employer until the 2nd May 2023. Upon receipt of the letter dated the 2nd May 2023 she arranged an appointment with Citizens Information and thereafter she referred her dispute to the WRC on the 26th May 2023. She stated that by letter dated the 13th June 2023 she was informed by the WRC that it appeared as if her complaints did not fall within the statutory timeframe. The Worker wrote to the WRC on the 14th June 2023 advising that she was late referring her dispute as she was awaiting a response from the Employer which she did not received until the 2nd May 2023.

The Employer was represented by IBEC who furnished written submissions on the 25th January 2024. The submissions and the appendices were opened and expanded upon at the hearing. The Employer acknowledged that there had been a delay in investigating the Worker’s complaints and responding to the Worker’s letters in her absence however a response was sent to the Worker on the 2nd May 2023 and a robust defence to the dispute was advanced.

The Employer submitted that the Adjudication Officer did not have jurisdiction to investigate the trade dispute further in circumstances where the dispute was out of time when it was referred to the WRC on the 26th May 2023. It was further submitted that there is no discretion for an Adjudication Officer to extend the time limit past 6 months unless “reasonable cause” is shown and that the Worker has failed to establish “reasonable cause”. The Employer referred to the cases of Cementation Skanska (formerly Kvaerner Cementation) v. Carroll (DWT0338), O’Donnell v. Dun Laoghaire Corporation [1991] ILRM 301, Skelly v. Dublin City Council (DWT212) and Business Mobile Security Ltd t/a Seneca Ltd v. John McEvoy EDA 1621.

In conducting my investigation, I have taken into account all relevant documentation and submissions presented to me by the parties.

Preliminary Issue – Time Limits:

As was outlined by the Labour Court in Rotunda Hospital v. A Worker LCR22612 the circumstances in which an Adjudication Officer can investigate a trade dispute to which a retired person is a party are limited by section 26A inserted in the Industrial Relations 1990 Act (hereinafter referred to as “the 1990 Act”) as follows:

S.26A (1) Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless—

(a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or

(b) the dispute was referred to an adjudication officer or, as the case maybe, the Court within the period referred to in paragraph (a).

(2) Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.

…

In response to a question from the Adjudication Officer the Worker confirmed that her employment ended on the 11th November 2022 when she retired. This was confirmed by the Employer’s representative who was in attendance at the hearing.

The Worker referred her dispute to the WRC on the 26th May 2023, outside the 6 month time limit as provided for in section 26A of the 1990 Act. The time limit may be extended up to 12 months where an Adjudication Officer is satisfied that there was reasonable cause for not referring the dispute within the 6 month time limit. 

The well-established test for granting an extension of time for reasonable cause is set out in the Labour Court decision of Cementation Skanska (formerly Kvaerner Cementation) v. Carroll (DWT0338) wherein the Court held:

 “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 O’Donnell v. Dun Laoghaire Corporation [1991] 1 ILRM 301 at 315 Costello J in the High Court 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 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 O. 84 r. 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 this 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] IR 181).”

The test is an objective one and the onus is on the Worker to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of “reasonable cause”.

The Worker accepted that she referred her dispute to the WRC outside of the statutory time limit. She sought an extension of the statutory timeframe on the grounds that she had engaged with the Employer locally on the matter and that the Employer did not respond to her in writing until the 2nd May 2023 and that it was only upon receipt of the said letter that she sought advice and referred her dispute the to the WRC.

While the Worker stated that the Employer’s delay in responding to her caused her to delay in referring her dispute to the WRC, she accepted that she informed the Employer in her letter of the 24th October 2022 that prior to writing the said letter she had a conversation with the “Work Relations Committee” as to how she should proceed with her complaints and that it was her intention to send them a copy of the complaint. At the hearing the Worker confirmed that the reference in the said letter to “the Work Relations Committee” was to the WRC and that she had sought advice from the WRC in October 2022 regarding the procedure for referring her dispute. The Worker stated that whilst it was her understanding that she had to wait for a response from the Employer before referring her dispute  to the WRC. she was advised that the dispute had to be referred “inside the 6-months’ time limit”. In response to a question from the Adjudication Officer the Worker stated that she could not say who she spoke to in the WRC in October 2022 other than that it was the receptionist who answered her telephone call and that she informed the individual that she was “just looking for information” on “the procedure for bringing her case”.   

The Employer’s representative outlined the Employer’s objection to the matter being heard on the grounds that at the date of the referral to the WRC the Worker was retired, the dispute was referred outside of the statutory timeframe and that the Worker has not established “reasonable cause” so as to allow the cognisable period provided for in the 1990 Act to be extended.  

The Employer submitted that the Worker made the decision to retire from her role on or before the 18th October 2022 with her employment ending on the 11th November 2022 based on a set of circumstances that happened prior to that date and that nothing occurred in the following 6 months that in any way changed that set of circumstances so there was no objective reason why the Worker did not refer her dispute during the statutory time period. The Employer accepted that there was a significant delay between the Worker setting out her complaints in writing on the 24th October 2022 and the 7th November 2022 and its response of the 2nd May 2023 however it submitted that its response to the said letters should not have affected the Worker’s decision to refer her dispute to the WRC and that in any event on the 2nd May 2023 the Worker was still within time to refer her dispute but did not do so. The Employer submitted that the Worker did not offer a credible reason for the delay or establish that the reasons relied upon both explained and excused the delay  and therefore the Worker did not satisfy the test for “reasonable cause”.

In Business Mobile Security Ltd t/a Senaca Limited v. John McEvoy (EDA 1621) the Labour Court held that the claim was statute barred stating:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”

I have also had regard to the decision in Skelly v. Dublin City Council (DWT212) wherein the Labour Court held that:

“A complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for delay.”

I am satisfied that the same principles apply in the instant case and am of the view that the Worker cannot circumvent the time limits set out in section 26A of the 1990 Act by seeking to rely on a subjective view that the Employer would resolve the matter locally. This erroneous belief should not have prevented her from complying with the statutory time limit for referring her dispute to the WRC.

I appreciate that the Worker was upset at the manner in which her employment ended and whilst I have sympathy for the Worker, who I found to be an honest witness, in the circumstances of this case I cannot find that the Worker has satisfied the test for establishing “reasonable cause” as required under section 26A of the 1990 Act and arising from this conclusion I must conclude that time cannot be extended.

Taking into account the date of the Worker’s retirement and the referral of the trade dispute to the WRC I am of the view that section 26A of the 1990 Act restricts me from investigating this trade dispute further.