LCR22963

PARTIES:

DIVISION:

SUBJECT:

Referral under Section 20(1) Industrial Relations Act 1969 (CA-00057657-001)

BACKGROUND:

The Worker referred this case to the Labour Court on 6 February 2024 in accordance with Section 20 (1) of the Industrial Relations Act, 1969, and agreed to be bound by the Court’s Recommendation.

A Labour Court hearing took place on 7 May 2024.

RECOMMENDATION:

The matter before the Court is a trade dispute about the inclusion of overtime in the Worker’s reckonable pensionable pay. 

The Worker retired from his employment with the Council on 7 June 2023. A complaint was submitted to the Labour Court on 6 February 2024, in accordance with Section 20(1) of the Industrial Relations Act, 1969.

A preliminary matter was raised regarding the time limits for lodging complaints by a retired worker. 

The LGMA, on behalf on the Council, submits that SIPTU has not demonstrated any reasonable cause for extending the timeline allowed for submitting a complaint about a trade dispute under the Act.  A complaint was submitted on behalf of the Worker to the Adjudication Services of the Workplace Relations Commission (WRC) on 12 July 2023 under Section 13(9) of the Industrial Relations Act, 1969. The Council objected to an investigation of the dispute by the WRC Adjudication Services under that provision of the Act, as its position is that the dispute about reckonable pensionable pay is a collective matter which has wider impacts on other employees. Having declined to avail of the services of the WRC, it engaged in correspondence with SIPTU, however, no correspondence was exchanged between the parties after August 2023. Accordingly, the Worker has not demonstrated any reasonable cause to explain the delay in lodging a complaint under Section 20(1) until February 2024. 

SIPTU submits that the Worker promptly lodged a complaint to the Adjudication Services of the WRC on 12 July 2023, having retired from his employment on 7 June 2023. On 3 August 2023, SIPTU received notification that the Council objected to an investigation of that complaint under Section 13(9) of the Act. SIPTU subsequently engaged in correspondence with the Council to try resolve the matter but to no avail. A complaint was subsequently submitted, on behalf of the Worker, to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969, on 6 February 2024.

SIPTU submits that it is aware of the onus on retired workers to submit a claim regarding a trade dispute within a six- or twelve-month timeframe of retirement. In this case, a complaint was made to the WRC as soon as possible after the Worker retired. SIPTU, on behalf of the Worker, tried to engage with the Council directly to resolve matters, having regard for the six- and twelve-month timeframe set down in the Act. A complaint was then lodged to the Labour Court under Section 20(1) of the Act.

Relevant Law

The Industrial Relations Act 1990 was amended by Section 45 of the Industrial Relations (Amendment) Act 2015 as follows: 

Time limit in relation to trade dispute where retired worker is party to dispute.

 45. The Act of 1990 is amended by the insertion of the following section after section 26:

“26A. (1) Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless—

(a) the dispute was referred to the Commission for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or

(b) the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a).

(2) Notwithstanding subsection (1), an adjudication officer or, as the case may be, the Court may extend the period referred to in that subsection by a further period not exceeding 6 months where the adjudication officer or the Court is satisfied that the failure to refer the dispute within the period referred to in subsection (1) was due to reasonable cause.

(3) The Commission or the Court shall not investigate a trade dispute to which a worker referred to in subsection (1) is a party where the dispute is subject to investigation by the Pensions Ombudsman.”.

Deliberations

The Industrial Relations Act 1990, as amended, specifies time limits that apply for lodging a complaint about a trade dispute by a worker who has ceased to be employed by reason of his or her retirement.

That provision specifies that the Labour Court shall not investigate a trade dispute by a retired worker unless the dispute was referred within six months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier. In other words, the Act requires that a worker lodge a complaint within six-months of his or her retirement. That timeframe may be extended by a further period of 6 months if the failure to present the complaint in time was due to reasonable cause.

The well-established test for deciding if an extension of time can be granted for reasonable cause is that formulated by the Labour Court in Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.  The test was set out 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.”

The Worker in this case retired from his employment with the Council on 6 June 2023.  A complaint under Section 20(1) of the Industrial Relations Act 1969 was submitted to the Labour Court on 6 February 2024, some eight months later.

SIPTU submits that the circumstances that arose in this case that gave rise to the delay meet the test of “reasonable cause”.  It submits that the primary reason that prevented the lodgment of a complaint within the six-month period following the Worker’s retirement was because of efforts to resolve matters directly with the Council.

An application to extend the time for lodging a complaint under the Act must show that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

In this case, the reasons may explain the delay, the Court finds that they do not provide a justifiable excuse for the delay.

While the Court commends the Worker for trying to resolve matters directly with his former employer, this Court has consistently held that a delay in referring a complaint for the purposes of exhausting an alternative means to resolve a dispute does not constitute reasonable cause for the delay.

The Labour Court is a creature of statute, and its powers and duties are derived solely from statute. The Court cannot assume a jurisdiction which is not conferred to it. The burden of proof in establishing the existence of reasonable cause rests with the Worker. 

A failure on the part of a retired Worker to present a complaint about a trade dispute in time deprives the Labour Court of jurisdiction to hear that complaint.

As a result, the Court finds that it has no jurisdiction to hear the complaint.

Recommendation

The Court finds that the reasons provided by the Worker are not sufficient to demonstrate reasonable cause for the delay in filing his complaint about a trade dispute under Section 20 (1) of the Industrial Relations Act.

Therefore, the Court finds that the complaint is out of time when lodged to the Labour Court and is accordingly statute barred.  In these circumstances, the Court cannot proceed to hear the substantive matter.

The complaint is therefore rejected.

The Court so Recommends.

	Signed on behalf of the Labour Court
	Katie Connolly
SOC	______________________
10 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Recommendation should be addressed to Sinéad O'Connor, Court Secretary.