Complainant

Respondent

Parties

Ross Hennessy

Shanbally Herb Dispensary

Complainant

Respondent

Anonymised Parties

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Representatives

Deirdre Courtney Augustus Cullen Law

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-00041298-003

28/11/2020

The Respondent argues that the complaint is out of time and is therefore statute barred. The Complainant resigned his position with the Respondent and his last day of work was 27th May 2020. He did not file his claim with the WRC until 28th November 2020 at 21:15:49 outside of the time period provided for by the Act.

The time limit starts to run for the day of the event. In those circumstances the claim should have been filed by the 26th November 2020. If the Complainant was having Wi-Fi issues it was open to him to drive to an area that had better Wi-Fi. He could also have posted it in. He did neither.

The Complainant by email to the WRC dated the 14 December 2020 setting out that the reason for the delay in filing the claim was that  “we have had no internet here at home in Co. Clare for the week it was due to be submitted. My phone would not hotspot to my computer, and I could not submit the form on my phone. I was requested by Revenue to submit the complaint as they are also handling a complaint regarding using my tax credits to top up my salary”.

The Complainant today stated that he had been in discussion with his solicitors over the summer months in relation to this matter and other matter and it was they who advised him on the 27th November to file the complaint that day. He ran into Wi-Fi difficulties and that is why it wasn’t filed until the 28th November at 21.15. The Complainant also stated that he wasn’t aware that he could post the form in but even if had known, it wouldn’t have been received by the WRC for a day or two.

The Complainant again on the 7th February 2021 emailed the WRC in relation to the delay stating “ the reason for the delay by one day in my submission of my complaint was due to my internet going down at home. I tried to submit the information using my mobile phone, but the form was not accepted by mobile. We live in a very rural location in Co. Clare and the connection is very poor even on a good day. It was on the advice from my solicitor … to lodge the complaint before Friday 27th November.It was very tight for time and very unfortunate my internet was not working”.

The Respondent argues that the complaint is out of time and should therefore be dismissed. The Complainant alleges that he has a valid reason as to why the complaint was filed outside of the 6 months provided for my the Act.

S41 (6) 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”

Section 41(8) of the 2015 Act states “ An adjudication offers 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) (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 the period was due to  reasonable cause”

S 41 (8)  empowers me to extend the initial six months limitation period by no more than a further six months, if, and only if, I am 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.”

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 failure to present the complaint in time.   Furthermore, 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.  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 the delay.  Also, the if the facts relied on for the delay only existed for a period of time within the six months period, that too is something I must take into consideration.  

By letter dated the 25th May 2020 the Complainant resigned his position, his last day being the 27th May 2020.  The last sentence of the letter of resignation states “If the final payroll is not fully paid, I will lodge a complaint with the WRC and or Revenue”. The letter of resignation clearly establishes the Complainant’s intention to refer the matter to the WRC should certain matters not be to his satisfaction. Despite that intention, the complaint was not filed until the night of 28th November 2020. The explanations for the delay as set out by the complainant in his emails dated 14th December 2020 and 7th February and his explanation during the hearing today all refer to internet difficulties he was having at this home in or around the week prior to the 28th November. No reference has been made in either correspondence or submissions to the time period for the 5 months and 3 weeks prior to that. During all of that time he was legally represented. Furthermore, other than the complainant trying to file the complaint via his mobile phone no other evidence was proffered in relation to other efforts he made to file the complaint at any stage within the six month time period. Having an explanation reasonable or otherwise for one week out of the six months provided for, albeit the last week, falls very far shortly of what is actually required to establish reasonable cause.  Therefore, I find that the complainant has failed to establish a reasonable cause for the delay and accordingly, as the matter is statue barred, I do not have jurisdiction to adjudicate on the matter. The complaint fails.

The complaint fails.

Reasonable Cause. Wi-fi difficulties. Unfair Dismissal.