Complainant

Respondent

Parties

Ms Jean Harrington

Mater Hospital

Representatives

Self-Represented

Ms Judy McNamara IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

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15/04/2024

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This matter came before the Workplace Relations Commission dated 15/04/2024.  The Complainant alleges a contravention by the Respondent of provisions of the above listed statute in relation to her employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 04/07/2024. 

The Complainant commenced employment with the Respondent on 17th November 2005.  The Complainant at all material times was employed as a Clerical Officer Grade 111.  The Complainant retired on 16th November 2023. 

The Respondent is the main charitable and voluntary general hospital serving Dublin’s north inner city and it is a university teaching hospital providing acute and tertiary specialist services employing over 3,279 staff. 

The Complainant is alleging penalisation under section 28 of the Safety, Health and Welfare at Work Act, 2005. 

The Respondent refutes this claim in its entirety. 

At the outset of hearing the Respondent representative raised two preliminary objections as to my jurisdiction in regard to time limits in the first instance and in regard to the legal principle of res judicata.     

In circumstances whereby the jurisdictional issue of time limits may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. 

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The Complainant submits she should not have to shoehorn her allegations of instances of penalisation into the statutory time limit.  The Complainant submits she had raised the matters internally and was waiting for a response. 

The Complainant accepts there is nothing she can point to within the cognisable period namely 16th October 2023 to 15th April 2024.   

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The Respondent submits there is no identifiable indication of any alleged complaint of health and safety having been made by the Complainant and neither does the complaint form or attendant documentation identify the penalisation or detriment claimed. 

The Respondent submits this claim was filed with the WRC on 15th April 2024 and accordingly the six months immediately preceding that date on which the claim was filed commences on 16th October 2023 to 15th April 2024 and any alleged breach must have occurred within the statutory time limit. 

The Respondent submits that the documentation in the Complainant’s booklet now relied upon in this claim mirrors the claims before an Adjudication Officer in 2019. 

The Respondent submits those 2019 claims cannot now be revisited due to the principle of res judicata the doctrine which prohibits the re-opening of an issue which has already been decided between the parties by a competent court or tribunal. 

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The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised from both and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

I am mindful of the case of Guerin v. SR Technics Ireland Limited [UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

Furthermore, in the case of Bus Eireann v. SIPTU [PTD8/2004] the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required.”

In the case of Donal Gillespie v. Donegal Meat Processers [UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

The Complainant in the within case has raised a complaint of penalisation under the Safety, Health and Welfare at Work Act, 2005. 

Section 27 of the Act defines penalisation as follows:

27.—(1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

I note the Complainant filed her complaint with the WRC on 15/04/2024.  Therefore, the cognisable period is from 16/10/2023 to 15/04/2024.  My jurisdiction is limited to considering allegations of penalisation occurring in this specific time period.  I note the Complainant’s submissions or oral evidence do not allege any specific acts of penalisation during this time period. 

My jurisdiction to hear this complaint of penalisation is set out in section 41 of the Workplace Relations Act, 2015 which provides as follows:

“…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.” 

Subsection 8 permits me to extend the time out by a further 6 months where reasonable cause is identified. 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six 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.” 

The matter of statutory time limits was explained to the Complainant when the Respondent raised this as a preliminary issue at the outset of hearing having due regard to the fact the Complainant presented as a litigant in person and in the interests of fair procedures.  The Complainant was provided with a copy of the relevant legislation for her information and perusal, and she was provided with a break during which to do so to which the Respondent did not object. 

This complaint was filed with the WRC on 15/04/2024 and as no argument was presented to me as to a possible extension under section 41(8), I would have been limited in my enquiries to matters arising in terms of a contravention from 16/10/2023 to 15/04/2024. 

However, for the sake of completeness, I have considered it important to address this point in terms of an extension of time as the Complainant when asked why she delayed in filing her complaint stated she had raised it with the Respondent and was awaiting a response albeit she did not formally seek an extension. 

I will address this hereunder for the avoidance of any possible doubt bearing in mind the Complainant presented as a litigant in person.          

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay.  It is a matter for the complainant to establish that there is reasonable cause for the delay.  It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay.   

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held 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 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 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, 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 complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

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 proceedings. 

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. 

The Labour Court in the case of A Bank v. A Worker EDA104 stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay is an “irreducible minimum requirement.”

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in 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.”

For an explanation of reasonable cause to succeed –

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                 A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that reason relied upon provides a justifiable excuse for the actual delay. 

The reason put forward by the Complainant when asked in the within case is that she had raised matters with the Respondent and she was waiting for a response. 

Applying precedent, I am mindful of the Labour Court determination in the case of Dublin City Council v. Skelly [DWT 212] where it was held as follows:

“… a claimant’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 the delay.” 

I also note the determination of the Labour Court in the cases of Brothers of Charity Services v. Kieran O’Toole [EDA 177] and Ervia v. Healy [PW/19/55] respectively where the Court held that deploying the employer’s internal grievance procedure did not operate to prevent an employee from a referring a complaint within the statutory requisite time limit. 

I have regard to the Labour Court determination in Business Mobile Security Ltd t/a Senaca Limited v. John McEvoy [EDA 1621] wherein it is held as follows:

“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.” 

The Complainant accepts there were no instances of alleged penalisation in the cognisable time period namely 16th October 2023 – 15th April 2024.  The Complainant has not requested an extension of time but for completeness and as part of my statutory duty to investigate I have considered the matter of an extension and I find the Complainant has not advanced any reasonable cause which would justify an extension of time to 12 months even had she requested such an extension. 

The Complainant has not met the standard of reasonable cause set out in the well-established test in the Cementation case of which I am mindful.  Nothing was advanced by the Complainant that both explains and excuses the delay. 

For the avoidance of any possible doubt, there is no provision which allows complaints outside of a twelve-month period to be heard.  An Adjudication Officer does not have jurisdiction to entertain a complaint after the expiration of a total of twelve months (where reasonable cause is shown for the delay) from the date of the alleged contravention to which the complaint relates.     

I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for an extension of time.  Therefore, I find I have no jurisdiction to determine the substantive case.

Accordingly, I find that in the circumstances there is no there is no requirement for me to consider the second preliminary issue of res judicata raised by the Respondent.    

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For the reasons stated above I find I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I decide this complaint is not well-founded. 

Out of time; res judicata; no jurisdiction; statute-barred;