Complainant

Respondent

Parties

Maria Inês  Da Silva Carvalho Rosalis

Cvs (Ireland) Veterinary Services 

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Joanne Hyde Eversheds Sutherland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00059288-001

09/10/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00059288-002

13/12/2023

The Complainant alleges that the Respondent has not paid her a sum of money in relation to her wages and holiday pay. The Respondent is not contesting that complaint. The Complainant also alleges that she was discriminated against by the Respondent. The Respondent states that the complaint is statute barred.

CA- 00059288 -001

On the first hearing date in March 2023 the Respondent acknowledged that the sum of € 6,455.59 was due and owing to the Complainant. The Complainant accepted the Respondent’s request to forward that sum to her. The Complainant acknowledges now that she has received the payment from the Respondent. However, Complainant when asked if she wanted to withdraw that complaint  stated that she did not want to as she was now confused about what money might still be owed to her by the Respondent.

CA- 00059288 -002

 The Complaint form states the employment ended on the 31.05.2023. The Complainant called the WRC on the 30.11.2023 and asked when the 6 month time limit expired. She was informed that it was on 30.11.2023. She did write, via email, to the WRC on the 30.11.2023 at 23:24. It stated:

“Dear Sirs, I would like to add another complaint to CA-00059288, please. Please, find in attachment the letter that supports this harassment complaint (password 1551) and also some important documents, like my signed contract, psychiatrist letter and receipt, sick leaves and emails switched and received with/by CVS and consider all the other documents sent before. Please note that I am currently in Portugal and that I will need a videoconference to present myself. Thank you for your kind attention”

She received a response from the WRC on 01.12.2023  at 16:35

 “Dear Inês Rosalis, I refer to the e-mail submitted by you. The following issues have arisen. Due to the Department’s ICT policies, I am unable to open the documents sent as links at the end of your email. Please re-send these documents in either Word or non-editable PDF as email attachments. I am therefore returning the material to you and advising you it has not been processed by the Commission. Kind regards”

The Complainant again sent the documents to the WRC in a number of e-mails between 18:14 and 18:21 on the 01.12.2023.

On the 04.12.2023 at 10:22 the Complainant was informed by the WRC that “ Due to Department ICT policies I am unable to open the attachment as it appears to be password protected”

On the 05.12.2023 the WRC wrote to the Complainant stating

“Dear Inês Thank you for your correspondence’s the contents of which have been added to the file, copied to the respondent and brought to the attention of the Adjudication Officer”

On the 06.12.2023 at 09:02 the WRC wrote to the Complainant stating:

“Dear Maria, I refer to the above complaint and now acknowledge receipt of your submission. The contents have been noted on file. This submission has been copied to the respondent. Correspondence should only be directed to the central mailbox pru@workplacerelaƟons.ie and not by reply to the sender of this email. Kind regards”

The Complainant thought that her new complaint had been filed as a result of that email. When she didn’t receive any further correspondence from the WRC she decided to call the WRC again on the 13.12.2023. She was informed that no new complaint had been filed and that she should send the supporting document to the WRC again. She sent all the relevant documentation again on the 13.12.2023.

On the 21.12.2023 at 13.51 the WRC acknowledge receipt of the new complaint

“I acknowledge receipt of the above additional complaints CA-00059288-002 received on 13/12/2023.Please note that CA-00059288-001 and CA-00059288-002 have been merged with CA-00059288 and all will be heard under Adjudication File Reference No. ADJ-00048249”

The documentation sent on the 30.11.2023 was the same as that sent on the 13.12.2023. Nothing additional was submitted. Therefore, the Complainant argues that the complaint was actually filed on the 30.11.2023 and as a result is not statute barred.

CA- 00059288 -001 In March 2024 when the matter first came on for hearing the Respondent accepted that the sum of €6,455.59 was due to the Complainant. That payment has been discharged in full and the Complainant acknowledges that she has received the money.

CA – 00059288 -002

By complaint form received on the 9 October 2023 the Complainant lodged a claim under the Payment of Wages Act. This claim is within time. On the 30 November 2023 the Complainant says that she phoned the WRC call centre asking “the lady” to advise her if an additional claim for harassment was “on time to present this claim”. The Complainant states that “it was confusing to understand if I was still on time to present this complaint”. This indicates that the Complainant was aware that she had six months in which to lodge a claim, and this is supported by the fact she did in fact lodge the other claim within the six-month period. The Complainant states that “during this call was decided that probably that day was the last day to present that claim so I was requested to send an email…”. In fact, the Complainant sent an email at 11.24 pm with various documents. No complaint form was sent, and the Complainant seems to suggest that this was not necessary as there was already a “wage case form filled before”.

 By email dated 1 December 2023 the Complainant was informed that as the Complainant had sent the documents as links they could not be opened, and they had not been processed by the Commission. The Complainant’s documentation was ultimately received properly on the 13 December, however, no complaint form was received. It is therefore entirely disingenuous of the Complainant to continue to maintain that she has lodged her complaint on time.

Section 41(6) sets out that the complaint must be lodged within six months from the date of penalisation to which the complaint relates. The Complainant has confirmed that the latest date of alleged harassment was 31 May 2023. The Complainant has applied to have the time extended.

The reasons given by the Complainant for not filing her complaint within the six months is “ between June an end of October I tried to negotiate with CVS my wages, while I was trying to keep my life a stable as possible, trying to find a new job and facing debts, which I am still this state. With all this plus language limitations and Ireland being a foreign country with different laws and authorities, 6 months was a very short time but still I found a way to present my harassment complaint on 30.11.2023”

However, she does not explain how it is that those alleged reasons did not preclude her from lodging her Payment of Wages claim on 9 October 2023 which is within that period. It is submitted that in circumstances where she lodged one claim within time, there is no causal link between the reasons offered and the Complainant’s failure to lodge the complaint within time. Furthermore, the Complainant sets out rationale for the period between June and end of October as to why she did not lodge her complaint. She gives no explanation what happened between the end of October and the 30 November. It is submitted that the Complainant clearly knew there was a six-month time limit as she contacted the WRC on the last day of the six-month period to seek advice from someone in the call centre whether she was within the time limit. It goes without saying that it is not a matter for someone in the WRC to advise on time limits and the Complainant cannot rely on any alleged advice from them. It is submitted that in circumstances where the reasons proffered by the Complainant do not either explain the delay or provide an excuse for the delay, the application to extend the time limit must fail.

CA 00059288 -001. The Complainant acknowledges that she had received a payment from the Respondent in the amount of €6,455.59. The sum claimed for in her complaint form was € 6,695.59. The Complainant did accept on the first day of the hearing the amount offered by the Respondent. She has received the agreed amount.

In those circumstances I find that the complaint fails. 

T

CA 00059288 -002

The Respondent raises a preliminary point in relation to the Complainant’s discrimination /harassment compliant CA 00059288-002. It is argued that the compliant was filed outside of the six months allowed for under the Act. Receipt of the complaint was acknowledged by the WRC as being the 13.12.2023 in their letter to the parties dated the 21.12.2023. The Complainant resigned her position on the 31.05.2023. She acknowledges that date as being the date upon which her employment ceased in her complaint CA 00059288-001. Taking the 31.05.2023 as the date upon which her employment ceased, that date is also the last date that she as an employee could have been discriminated against by the Respondent employer. Therefore, she had until the 30.11.2023 to file her complaint. I am satisfied that she was aware of the six month time limit as she stated that she called the WRC on the 30.11.2023 to get clarity as to when the six month limit expired. The Complainant did send documentation to the WRC on the night of the 30.11.2023 however it couldn’t be opened by the WRC. She sent it again in part on the 01.12.2023 and in part the 02.12.2023 and again on the 04.12.2023. On the 04.12.2023 the WRC informed her that they were unable to open the documents as they were password protected.  She sent it again on the 05.12.2023. Later on the 05.12.2023 the Complainant was informed by the WRC that the documents had been received and uploaded on to the file. However, I note that the Complainant was not given a new CA number for the harassment claim. All that had happened was that the documents she sent in where uploaded onto the original file. She should have been aware that each complaint receives a CA number as she received one in relation to her Payment of Wages claim. I suspect she was aware of this as she called the WRC on the 13th because she hadn’t received “feedback from WRC since 5th December”. On the 13th after talking to a member of staff at the WRC she submitted her complaint again and this time she did receive correspondence allocating a CA number to her new complaint. To date no WRC complaint form has been filed in relation to her harassment claim.

The Complainant alleged that someone in the WRC told her on the 30.11.2023 that she did not have to file a complaint form in relation to her harassment claim. She did not call this individual to give evidence and had no correspondence from the WRC stating what she had been told.  Therefore, I am attaching the appropriate weight to this evidence, it being hearsay evidence.

In all of the circumstances I am satisfied that the complaint was filed outside of the six months allowed for by the Act.

Section 41(8) of the 2015 Act 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'.

“Reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The 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 v Carroll.  Here the test was set out in the following term;

“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 of 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 had not been present, he would have initiated the claim on time.”

In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should have been 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 and others.   The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation  .  Here Costello J (as he then was) stated 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 were justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. It is clear from the authorities that the test places the onus on the Applicant on 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 link between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, I 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. 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.”   In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings. 

I am satisfied that the Complainant was aware of the six month time limited for the reasons set out above. I am further satisfied that there was nothing preventing her from filing her complaint within time. She successfully filed her payment of wages claim in October 2023. The explanation given by the complainant that “between June an end of October I tried to negotiate with CVS my wages, while I was trying to keep my life a stable as possible, trying to find a new job and facing debts, which I am still this state. With all this plus language limitations and Ireland being a foreign country with different laws and authorities, 6 months was a very short time but still I found a way to present my harassment complaint on 30.11.2023”  is not only factually incorrect, it falls far short of what is required by law to give me jurisdiction to extend the time by a further six months. The reality is that she did not, for one reason or another, manage to file her complaint within the six months allowed. There are no circumstances in existence that could allow me to extend the time pursuant to Section 48(1) therefore I find that the complaint CA 000 59288 - 002 is statute barred and accordingly fails.

CA 00048249- 001 The complaint fails.

CA 00048249 -002 The complaint is statute barred.

Statute of limitations. Reasonable cause.  Extension of time. Hearsay.