Complainant

Respondent

Parties

Sarah  Kelly

Ics Mortgages Dilosk

Complainant

Respondent

Anonymised Parties

Representatives

  In person

Roberta Urbon, Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00061348-001

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061348-002

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00061348-003

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00061348-004

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00061348-005

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00061348-006

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00061348-007

26/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00061348-008

26/01/2024

The Complainant was employed by a recruitment agency and was placed in a position within the Respondent company. Employment commenced on 13th December 2021.

This complaint was received by the Workplace Relations Commission on 26th January 2024.

Introduction

The Claimant was employed by the Hays Specialist Recruitment Ireland Ltd (hereinafter referred to as “The Agency”) as temporary mortgages administrator. The Claimant’s employment commenced on 13 December 2021. The Claimant’s employment ceased on 19 June 2022.

The Respondent is a Limited Liability Company (hereinafter referred to as “the Company”) trading in residential mortgages.

The Respondent is an end user and not the employer of the Claimant.

On 26 January 2024 the Claimant commenced the following claims:

a. CA-00061348-001 – Unfair dismissal - Submission – CA - Employment Equality Act 1998 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

b. CA-00061348-002 – Minimum Notice - Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

c. CA-00061348-003 – Minimum Notice - Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

d. CA-00061348-004 – Fixed Term and Part Time Work - Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees {Fixed-Term Work) Act, 2003

e. CA-00061348-005 - Parental, Carers, Paternity, Maternity and Adoptive Leave - Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

f. CA-00061348-006 - Parental, Carers, Paternity, Maternity and Adoptive Leave - Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

g. CA-00061348-007 - Parental, Carers, Paternity, Maternity and Adoptive Leave - Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994.

h. CA-00061348-008 - Agency Working - Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work} Act, 2012 5.

The Respondent denies the claims as alleged or at all.

First Preliminary Issue

Time Limit

 The Claimant lodged the Complaint Reference Number CA-00061348 on the 26 January 2024.

Considering that the Claimant lodged such complaint to the WRC on the 26 January 2024 in relation to unfair dismissal that have occurred on the 20 March 2023, it is submitted that the Claimant out of time to bring all her complaints for the purposes of the Workplace Relations Act 2015.

No specific dates of contravention are set out.

The Workplace Relations Act 2015 provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation.

Section 41(6) of the Workplace Relations Act (2015) states: “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.”

The Claimant was therefore required by Section 41(6) of the Workplace Relations Act 2015 to notify the WRC of their complaint no later than 20 September 2023.

Reasonable Cause

The Respondent submits that in the case of Cementation Skanska v Carroll, DWT0338, the Court articulated the test pertaining to time limits by stating:

“It is the Court's view that in considering if reasonable cause exists, it is for the Appellant 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 Appellant at the material time. The Appellant'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 Appellant 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 this regard, the Respondent refers to the following Supreme Court decision on time limits, albeit in the context of a complaint under the Employment Equality Acts, of County Louth VEG -v- Equality Tribunal [2016) IESC 40:

“If a complaint is out of time and thus fails to satisfy a condition precedent, and remains so found after inquiry, then it cannot be said to have been "lawfully referred" to the Tribunal, such that it may properly be investigated for redress purposes…”

In addition, the statutory measure does not operate as a defence point or its equivalent only. It must therefore be treated as a condition precedent to the exercise of the Tribunal's jurisdiction.

 In Able Security Ltd v Hardjis Langsteins DWT1319 the Labour court stated:

“The Court has consistently held that a Complainant carries an evidential burden to put in issue the facts upon which his or her claim is grounded and must outline the claim with enough particularity to allow a Respondent know what it is they are being accused of.”

The Respondent needs basic information. The complaints are not straightforward to enable the Respondent to defend such complaints.

Deciding the preliminary issue prior to hearing the substantive matter.

There is a body of case law which suggests an Adjudication Officer is precluded by law from holding a substantive hearing until a decision on the preliminary matter is in fact reached.

In the case of Guerin v SR Technics Ireland Limited UD969/2009, the Employment Appeals Tribunal was asked to decide on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

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.

In the case of Donal Gillespie and Donegal Meat Processors 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 dealt with together was: “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. In determining the issue of jurisdiction, the Court must confine itself to the nature of the termination without enquiring into the fairness or otherwise of the decision itself, having regard to submissions made on the preliminary issue by both parties, the documents referred to therein and the relevant statutory provisions. Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself.”

The Respondent refers to section 8(2) of the Unfair Dismissals Act 1977 which provides:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 the Director General —

(a)   within the period of 6 months beginning on the date of the relevant dismissal,

(b)   or (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

The Complainant informed the hearing that she had originally made several complaints against her employer, the agency, and that these complaints had been settled at mediation.

The original complaint submitted under section 8 of the Unfair Dismissals Act,1977 had named the agency as the Respondent. At that time the Complainant claims she was unaware that the complaint should have been made against the client and not the agency.

Section 41 (6) of the Workplace Relations Act, 2015 reads as follows:

41 (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 Act states:

41(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.

I have looked at and considered the facts and circumstances the Complainant found herself in and do not believe reasonable cause has been shown. This being the case I have no jurisdiction to hear the complaints as presented.

I have looked at and considered the facts and circumstances the Complainant found herself in and do not believe reasonable cause has been shown. This being the case I have no jurisdiction to hear the complaints as presented.