Complainant

Respondent

Parties

Mairead Hanlon

Ard Churam Day Care Centre

Representatives

  Self-represented

 Carey Solicitors

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-00051658-001

07/07/2022

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

CA-00051658-002

07/07/2022

The Complainant commenced employment with the Respondent in early 2018 as the “Activities Coordinator for older people in north Kerry” and is paid monthly remuneration of €1200.  

On the 7/7/2022, the WRC received a complaint form by email pursuant to Terms of Employment Information Act (1994) (as amended) and on the 8/7/2022 a hard copy form was received by post.

The Complainant submitted that the Respondent changed her terms and conditions of employment by requiring her to be based exclusively and fully at the Respondents daycare centre working exclusively with the Respondent’s clients who suffer from dementia and Alzheimer's. It was submitted by the Complainant that Mr Mawe requested the Complainant to work exclusively at the Respondent’s daycare centre during a telephone conversation on the 5/1/2022.

The Complainant submitted that her terms and conditions of employment were subject to a fundamental change and that she was not notified of same in line with the requirements of Section 5 of the Terms of Employment Information Act (1994) (as amended) (the Act).

Preliminary Issue – Time Limits

The Complainant acknowledged in her complaint form that her complaint was out of time, and  stated;  

”I should have forwarded my complaint by yesterday July 5th, as this was the six month deadline. My sincere apology. There has been a considerable amount of time wasting by my employer since last January.  Also I am not up to date with technology, I just have the basic knowledge. I encountered a lot of difficulty accessing the complaint form and getting it downloaded. I phoned your office last week and again this week and spoke with very helpful staff. Eventually…………… posted out the complaint form which I'm going to return to you now.”

Summary of Complainant’s Evidence, Mairead Hanlon

The Complainant stated in evidence that that she was seeking an extension of time to extend the time limit to 12 months pursuant to Section 41 (8) of the Workplace Relations Act 2015 to allow her submit her claim within time. The Complainant stated that she was relying on the following three reasons;-

·        the delay by the Respondent in progressing the grievance process,

·        that her husband was sick and going through treatment and had multiple medical appointments to attend,

·        that the Complainant’s own health deteriorated, and she had a lot of medical appointments to attend.

The Complainant stated that there was a lot of time wasting by the Respondent with the grievance and appeals process. She stated that she lodged her grievance on the 28/3/2022, the first decision issued on the 1/6/2022, she lodged an appeal on the 29/6/2022 and received the outcome on the 1/ 9/22.

The Complainant also stated as a reason for the delay that she didn't know how to send or submit the online complaint form. She stated that she was relying on her son to assist her, and he was away on placement and returned just two days before the deadline. The Complainant stated that there were Wi-Fi problems in the area which she found out from neighbours. She stated that she made three attempts from a neighbour’s house on the 3/4 July to submit the online complaint form and she could not send it as the Wi-Fi was down in the area for a couple of days. The complainant stated that the Wi-Fi must have come back as she was able to send the complaint form that morning. The Complainant stated that she didn't go to the nearest town, Listowel to see if she could send the form from there.  

The Complainant stated that she started with the Respondent as the activities coordinator in February 2018 on a five month contract. She stated her contract was extended and she received a revised contract in August 2020. The Complainant described her role as being out in the community all the time and provided an outline of her role in terms of the programmes she was responsible for and activities that she undertook. The Complainant confirmed that she was not based in the Respondents centre in Ard Churam.  

The Complainant stated that the day after she went back to work, she received a call from Mr. Mawe.  She stated that Mr Mawe said to her that he wanted her to work in the Fuchsia centre as they were down staff due to staff shortages as a result of the COVID-19 pandemic.  She stated that she was not emotionally able to work in the Fushia centre as she had five family bereavements in 2021 and was unable to work with Alzheimer's patients. The Complainant stated that emotionally she couldn't do it.

The Complainant stated that she could work in the Ard Churam centre however Mr Mawe stated that she had to work in the Fuchsia centre or else her contract would cease. She was informed by Mr Mawe that she would no longer be working out in the community.

The complainant said she was completely taken aback and told Mr Mawe that she couldn't do this as it was not the job that she applied for, the phone call ended. The Complainant stated that she never received anything in writing after the call with Mr Mawe. She stated she spoke to Ms Hartnett and was very distressed and emotional that day.

The Complainant stated the next day she received a call from Ms Hartnett about working in the Fuchsia centre and explained to her that she couldn't work there. She stated that following the call she has been absent from work on stress related leave and has been sending in medical certificates and is currently on certified sick leave.  The Complainant lodged a grievance pursuant to the Respondent’s grievance process and has pursued the grievance including lodging an appeal.

It was put to the Complainant in cross examination that the base location of her work is Greenville Listowel. The Complainant confirmed that technically this was correct but not in practice. It was put to the Complainant that her contract of employment does not differentiate between clients. The Complainant confirmed that she had no issue working with Alzheimer's patients, her issue was after 5 bereavements she could not emotionally do it that she was at rock bottom.

It was put to the Complainant that during the telephone call with Mr Mawe that she was asked to help out due to staff shortages on a temporary basis to cover for staff who were out on sick leave. The Complainant did not agree with this and replied that she was told that her contract would cease if she did not work in the Fuchsia centre. It is put to the Complainant that Mr Mawe would be denying this in his evidence, and he would be saying that he asked her to work there for two weeks. The Complainant denied this and confirmed that he never mentioned a two-week period.

It is put to the Complainant that by reference to a handwritten memo by Ms Hartnett dated 5/1/2022, exhibited at the hearing, that she refers to a two-week period.  The Complainant did not accept the contents of the memo. The Complainant confirmed that she remains absent from work on certified sick leave.

In summing up the Complainant stated that she was in her job for five years and she loved it. She stated that she worked extra hours above her allocated hours of 20, and often worked 30 / 40 hours a week in order to develop her role and her position within the community. The Complainant stated that she worked very well with everyone and had huge job satisfaction, she cited the two concerts she organized as highlights. The Complainant stated the phone call on the 5/1/2022 with Mr Mawe changed her life when she was told that her contract would cease if she didn’t work in the Fuchsia centre. The Complainant stated that it has caused her huge stress which resulted in her being hospitalised due to medical reasons and has affected her sleep. The Complainant stated that after the call on the 5/1/2022 she thought someone from the Respondent would reach out to her and that did not happen.

The Respondent denies the claim that there was a material breach of Section 5 of the Act as alleged.  

It was submitted by way of written submissions that the Respondent is a Day Care Centre, based in Greenville Listowel, Co Kerry, which offers services to the elderly from the town and surrounding areas.  It is run on a not-for-profit basis with support from the HSE and local fundraising and is a registered charity.

It was submitted that Ard Chúram comprises of two buildings adjacent to each other.  The Day care services are provided for older people five days per week in the main building while services are provided four days per week for those with dementia in the Fuchsia wing.

It was submitted that the Complainant was initially employed by the Respondent in February 2018 on a five-month fixed term contract as a“Part-Time Physical Activity Project Worker (Older People)”.   It was submitted that the Complainant was based at Ard Chúram Day Care centre however the nature of the job was that she would work remotely as stated in her contract.

The Complainant signed new terms and conditions on the 9/8/2020 which terms were exhibited at the hearing. It was submitted that in the contract the Complainant’s job title is described as  “Physical Activity Project Worker (Older People) and your duties will be as advised by the Nurse Coordinator.  Your duties may be modified from time to time to suit the needs of the business”.  

It was submitted that under “Place of Work”, it is stated that the Complainant “will normally be required to work at Greenville, Listowel, Co Kerry” ’s where Ard Chúram, including the Fuchsia centre, is based.     

It was submitted that at no time up until 5/1/ 2022 did the Complainant suggest that she was unwilling to work with people suffering from dementia who represent almost one third of the Respondent’s clients.  

It was submitted that when the Covid 19 pandemic commenced in March 2020, the Respondent had to close its doors as staff were unable to work at the centre or in the day centre. It was further submitted that Ard Chúram reopened in July 2021 on a phased basis and the Fuchsia wing opened in August 2021.

It was submitted that during a telephone call on 5/1/2022 Mr Mawe asked the Complainant if she could fill in at the Fuchsia centre for a two week period given the shortage of staff due to sick leave absence. It was submitted that the Complainant said she would think about it and revert to Mr Mawe. The following day the Complainant submitted a medical certificate regarding her sick leave absence and has been absent on sick leave since then.    

It was submitted that Complainant lodged a grievance pursuant to the Respondent’s grievance procedure on the 28/3/2022. It was further submitted that the Complainant stated in her letter of complaint, that she had received legal advice regarding her employment.   The grievance was investigated by an external HR consultancy company and was not upheld.  The Complainant appealed that decision, and the appeal was investigated by an external HR consultancy company which did not uphold the appeal. 

It was submitted by the Respondent that the request to fill in at the Fuchsia centre did not constitute a change to the Complainant’s terms and conditions of employment.  It is further submitted that the Complainant refused the request and has been out on sick leave since then.  Accordingly, it was submitted that it could not be said that any change to the Complainant’s terms of employment occurred.  

Preliminary Issue – Time Limits

It was submitted by way of written submission that the Complainant’s handwritten complaint was received by the WRC on the 8/7/ 2022.  Accordingly, any complaint relating to events which occurred before the 7/1/2022 is statute barred.  

It was submitted that according to the complaint form, the Complainant contacted the WRC the week beginning Monday the 4/7/2021 and the previous week beginning the 27/6/2021 and spoke to two WRC employees who posted out the complaint form to her.  It was submitted that the Complainant as indicated in her original grievance, had the benefit of legal advice.  

It was submitted that any incidents set out in the complaint form which occurred prior to the 7/1 /2022 are statute barred, various incidents are referred to.

It was submitted that the Complainant described in correspondence to the WRC as “the focus” of her complaint a telephone call from Mr Mawe on the 5/1/2022. It was submitted that this call is also statute barred. It was submitted that there is no reason to extend time in this case, in circumstances where the Complainant had legal advice and where she was in communication with the WRC in June 2022.   

The Respondent referred to Section 41(8) of the of the Workplace Relations Acts 2015 (as amended) which empowers an Adjudication Officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period “was due to reasonable cause”.

It was submitted that what constitutes “reasonable cause” has been considered in a number of cases. The Respondent placed reliance on In Salesforce.com v Alli Leech, where the Labour Court set out in detail the legal principles to establish whether reasonable cause existed and also referred to the Labour Court Determinationof DWT0338 Cementation Skanska v Carroll. 

It was submitted that the Complainant relies on the fact that she is not “up to date” with technology to explain the delay.  However, it was further submitted that the Complainant had assistance from her son in sending in the claim, she spoke to staff in the WRC that week and the previous week and it is submitted there is no justifiable excuse for the actual delay.  

In summing up regarding the preliminary issue the Respondent’s representative submitted that all incidents including the incident on the 5/1/2022 are statute barred. It was submitted that there is no causal link between the reasons cited by the Complainant and the failure of the Complainant to lodge a complaint in time. It was submitted that no supporting evidence was provided. It was submitted that the reasons related to connectivity issues are not credible on the basis that if there was no internet connection the Complainant would not receive a bounce back message which she stated she received.

Preliminary Issue – Time Limits

It is not disputed that the date of contravention for the purposes of this claim is the 5/1/2022 the date the Complainant received a telephone call from Mr Mawe requesting her to work in the Fuchsia centre. The Complainant described this incident in her documentation as “the focus” of her complaint and that Mr Mawe “changed my terms of work” during this call. 

The WRC received the complaint form on the 7/07/2021 by email and a hard copy complaint form was received on the 8/07/2021. The Complainant acknowledged in her complaint form that her claim was out of time and that she was aware that a six-month time limit applied, which expired on the 5/7/2022.

The time limits for referring complaints to the WRC are set out in Section 41 of the Workplace Relations Act, 2015 which provides that:

‘(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.’

Section 41(8) of the 2015 Act provides that the time for presenting a claim may be extended for reasonable cause shown for a further period of six-month but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim, which states as follows;

‘(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.’

As submitted by the Respondent’s representative what constitutes “reasonable cause” has been considered in several cases.  The jurisprudence in respect of the concept of “reasonable cause” is summarised in Salesforce.com v Alli Leech EDA1615 where the Labour Court stated:

‘The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. 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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.”

In the well-established case of Cementation Skanska (formerly Kvaerner Cementation) v CarrollDWT0338, the Labour Court also noted the following:

“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 Complainant has a good arguable case.’

It is clear from the jurisprudence that the test places an onus upon a Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay.   

Considering that the date of contravention to which this complaint relates is the 5/1/2022, the six-month time limit within which the complaint form should have been referred to the WRC expired on the 4/7/2022. The complaint form was first received by the WRC on the 7/7/2022.

The Complainant advanced multiple reasons, as set out in her complaint form, correspondence and in her direct evidence, to demonstrate that the time limit should be extended on the basis that she satisfies the test of reasonable cause. 

It was clear to me that the Complainant had suffered much distress and appeared to be significantly impacted in the aftermath of the phone call which occurred on the 5/1/2022.  However, in the circumstances of this case I cannot find that she has satisfied the test for establishing reasonable cause as required under Section 41 (8) of the 2015 Act, for the following reasons.

I note that the Complainant refers to the delay by the Respondent in processing her grievance under their process as a reason for the delay. I note that the Complainant lodged a grievance on the 29/3/2021, which was not upheld, and an outcome report was issued on the 1/6/2022. The Complainant lodged an appeal on the 29/6/ 2022 and an appeal report was issued on the 1/9/2022 not upholding the appeal.

The Complainant did not put forward any detail regarding the length of delay as alleged, or how it prevented her from lodging her complaint in time. It appears to me from the timeline that the grievance and appeal process, were progressed in a timely manner. Accordingly, I do not consider that this reason explains and excuses the delay.

The Complainant cited the fact that her husband was sick, was going through treatment and had multiple medical appointments, as a reason for the delay. No medical evidence was put forward to support this assertion nor was any detail provided regarding the number of medical appointments as referred to. In the absence of any medical evidence or detail I do not consider that this reason supports the Complainant’s case to demonstrate that reasonable cause existed.

The Complainant cited the fact that her own health deteriorated, and she had multiple appointments as a reason for the delay. I note that the Complainant confirmed that she remained absent from work on certified sick leave on the second hearing day, therefore I appreciate that the Complainant has been ill for some time. However no medical evidence was provided to support this assertion, nor was any detail provided regarding the number of medical appointments, nor the extent and impact of the illness upon the Complainant. Therefore, I conclude that this reason does not sufficiently explain or excuse the delay.

The Complainant also cites various matters related to technology issues including her lack of familiarity and/or skill in using technology, difficulties in accessing and downloading the WRC online complaint form, and wi-fi issues in her local area for several days which prevented her from submitting the online complaint form in time. I note the Complainant was relying on her son to assist her with submitting the online complaint who was away on placement and returned two days before the deadline. Even if I accept that there were internet connectivity issues in the area it was open to the Complainant to travel to the nearest town to ascertain if the wifi was operational which she stated she didn’t do.

I note that the WRC sent out a complaint form, upon request to the Complainant prior to the six-month deadline which was received by the WRC on the 8/7/2022. In circumstances where the Complainant was aware of the time limit, had assistance from her son in submitting the form and was in contact with the WRC the week prior to the six-month deadline, I do not consider the various matters as cited in this regard, demonstrate a causal link which prevented her from lodging the complaint on time.  

Considering the foregoing, I am satisfied that the reasons relied upon by the Complainant do not explain and excuse the delay in lodging her complaint in time.  For the reasons set out above, I find that the Complainant has not established that the late submission of the complaint was due to reasonable cause as provided for under Section 41 (8) of the 2015 Act and therefore I am unable to extend the time limit. It follows that I do not have jurisdiction to decide the complaint under the Terms of Employment Information Act (1994) (as amended).

I find that I do not have jurisdiction to determine this complaint under the Terms of Employment Information Act (1994) (as amended), as it was not submitted within the required time limit. I find that the Complainant has not established that she was prevented from doing so due to reasonable cause as per Section 41(8) of the Workplace Relations Act, 2015.    

In the circumstances, I declare that this complaint is not well founded.  

Referral of complaint – extension of time- reasonable cause