Complainant

Respondent

Parties

Grace  O'Connor

Spar Express

Representatives

  Self-represented

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act, 1967

CA-00040350-001

07/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act, 1967

CA-00040350-002

07/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 39 of the Redundancy Payments Act, 1967

CA-00040350-003

07/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 11A of the Protection of Employment Act, 1977

CA-00040350-004

07/09/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 11A of the Protection of Employment Act, 1977

CA-00040350-005

07/09/2020

The Complainant outlined that she worked for the Respondent from 18 September 2015 until the shop closed on 5 September 2019. She was employed as a shop assistant, working approximately 12 hours per week, earning €10.50 per hour. Mr Luke Bree owned the shop. The Respondent did not give the Complainant statutory or contractual notice of termination of employment, nor did the Complainant receive payment in lieu of notice. The Complainant outlined that Mr Bree told her either on 3 or 4 September 2019 that the shop would cease trading on 5 September 2019 and that “he would look after” the staff. There was a total of nine persons working in the shop, which included Mr Bree and members of his family. The Complainant later verbally requested a redundancy payment but Mr Bree told her he could not afford to pay it to her. The Complainant was not aware that there was a time-limit for referring a complaint to the WRC. The Complainant received a letter from the WRC stating that her complaints may be out of time. The Complainant did not respond to that letter.  The Complainant was not sure why she referred a complaint under the Protection of Employment Act 1977, and said she has no knowledge of its provisions.

There was no attendance at the hearing by, or on behalf of, the Respondent. No communication was received by the WRC from the Respondent to give a reason for non-attendance at the hearing.

Law

Redundancy Payments Acts 1967 to 2022 (“the Acts”)

Section 9(1) of the Acts provides:

“For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice”.

Section 2(1)(b) of the Acts provides that the “date of dismissal”, in relation to an employee, means:

“where his contract of employment is terminated without notice, whether by the employer or by the employee, the date on which the termination takes effect . . . .” (emphasis added).

The Acts provide for a time limit on claims for a redundancy payment as follows:

“24(1) Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment . . .(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39” (emphasis added).

Section 24 (2A) of the Acts provides that where reasonable cause is shown for a delay in presenting a claim under the Acts, the 52-week time limit at s 24(1) may be extended to a period not exceeding 104 weeks beginning on the date of dismissal or the date of termination of employment.

“24(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled” (emphasis added).

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the Acts to the WRC. The established test for deciding if an extension of time should be granted for ‘reasonable cause’ is set out in the Labour Court determination in the case of Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] as follows:

“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 context in which the expression reasonable appears 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.”

The Labour Court held in Globe Technical Services and Kristen Miller [UDD1824] ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complaint referral. The Court stated:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to the complaint, cannot provide a justifiable excuse for failure to bring a claim in time”. 

Protection of Employment Act 1977 (“the 1977 Act”)

The Protection of Employment Act 1977 (as amended) provides for certain procedural requirements that an employer must follow in the event of collective redundancies. Section 6(1) of the 1977 Act provides:

“For the purpose of this Act, ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is —

(a) at least 5 in an establishment normally employing more than 20 and less than 50 employees,

(b) at least 10 in an establishment normally employing at least 50 but less than 100 employees,

(c) at least ten per cent. of the number of employees in an establishment normally employing at least 100 but less than 300 employees, and

(d) at least 30 in an establishment normally employing 300 or more employees” (emphasis added).

The Workplace Relations Act 2015 provides that a complaint must be referred within six months of the alleged contravention of the legislation. If a complaint is not referred within that time limit, an Adjudication Officer may grant an extension up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated ‘reasonable cause’ for the delay.

Findings

CA-00040350-001

The Complainant presented this claim/appeal to the Workplace Relations Commission on 7 September 2020. The uncontested evidence of the Complainant is that she was made redundant on 5 September 2019 when the shop she was employed in ceased trading on this date. In view of the foregoing, I find this claim was referred outside of the time limit set out in s 24(1) of the Acts. I note the Complainant’s assertion at hearing that the reason she did not submit her claim within 52 weeks as required was because she did not know that a time limit applied. I am not satisfied that the failure to refer the claim within the 52-week time limit was due to reasonable cause. Accordingly, I find I do not have jurisdiction to decide the claim under the Redundancy Payment Act 1967 as the claim is out of time.

CA-00040350-002

This is a duplicate claim.

CA-00040350-003

This is a duplicate claim.

CA-00040350-004 (my representative was not properly consulted in relation to a proposed collective redundancy)

The Complainant presented this complaint to the Workplace Relations Commission on 7 September 2020. Accordingly, I find I do not have jurisdiction to inquire into this complaint as the complaint is out of time.

CA-00040350-005 (my employer did not supply my representative with all the relevant information relating to the proposed collective redundancies)

The Complainant presented this complaint to the Workplace Relations Commission on 7 September 2020. Accordingly, I find I do not have jurisdiction to inquire into this complaint as the complaint is out of time.

CA-00040350-001

I decide I do not have jurisdiction to inquire into this appeal as the appeal is out of time.

CA-00040350-002

I decide to disallow the Complainant’s appeal as this is a duplicate appeal.

CA-00040350-003

I decide to disallow the Complainant’s appeal as this is a duplicate appeal.

CA-00040350-004 (my representative was not properly consulted in relation to a proposed collective redundancy)

I decide I do not have jurisdiction to inquire into the complaint as the complaint is out of time.

CA-00040350-005 (my employer did not supply my representative with all the relevant information relating to the proposed collective redundancies)

I decide I do not have jurisdiction to inquire into the complaint as the complaint is out of time.

Redundancy payment. Time limits. Out of time.