ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00045909

Parties:

	Complainant	Respondent
Parties	Joseph Dempsey	Dermot Conroy Limited

Representatives

Self-Represented

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00056717-001	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056717-002	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00056717-003	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00056717-004	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission SI No. 494 of 2004 and Clauses 6 of the EC (Working Conditions of Mobile Workers engaged in Interoperable Cross-Border Services in the Railway Sector) Regulations, 2009-SI No. 377 of 200	CA-00056717-005	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00056717-006	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2006	CA-00056717-007	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00056717-008	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00056717-009	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00056717-010	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00056717-011	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00056717-012	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00056717-013	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00056717-014	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00056717-015	17/05/2023
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00056717-016	17/05/2023

Date of Adjudication Hearing: 09/10/2023

Workplace Relations Commission Adjudication Officer: Brian Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014and section 8 of the Unfair Dismissals Acts 1977 – 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant commenced employment with the Respondent on 29th July 2013. At all relevant times the Complainant’s role was described as that of “retail assistant”. The Complainant was a part-time, permanent employee, in receipt of an average weekly payment of €300.00. The contract of employment terminated on 21st July 2022, the nature of this termination forms the subject matter of the present dispute.

On 17th May 2023, almost ten months later, the Complainant referred the present set of complaints to the Commission. Herein, he raised multiple allegations of breaches of his statutory entitlements by his former employer. In addition to the foregoing, the Complainant submitted that this termination was in fact on the grounds of redundancy and, as a consequence of the same, he was entitled to a statutory redundancy payment. In denying these allegations, the Respondent submitted that the Complainant resigned his employment and consequently is not entitled to a redundancy payment.

A hearing in relation to this matter was convened for, and finalised on 9th October 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party during the hearing.

In correspondence prior to the hearing, a preliminary issue as to whether the majority of the complaints were referred in time was raised. The Complainant issued a submission in respect of this point, in addition to a submission in respect of the substantive issues. The Respondent contested the Complainant’s position regarding the preliminary issue and also issued a submission in respect to the preliminary points. The Complainant gave evidence in support of his complaints, while a managing director gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

At the outset of the hearing, it was agreed that the preliminary issue could, potentially, be determinative of all complaints, apart from those referred under the Redundancy Payments Acts. In such circumstances, this issue will be considered in advance of the substantive matter.

Summary of Complainant’s Case as to the Preliminary Point:

The Complainant accepted that he referred his complaint well in excess of the six-month time frame permitted by the legislation. Notwithstanding the same, he sought to extend the cognisable period under the relevant legislation on the basis of “reasonable cause”.

In this respect, the Complainant stated that he was unaware of his rights in this regard. He submitted that it was only when he referred the issue in respect of his termination, he became aware of his ability to refer the rest of the statutory complaints. In this regard, the Complainant submitted that he understood that he had a year to refer the complaint under the Redundancy Payments Acts and understood that the timeframe was similar for all other complaints. The Complainant stated that he raised these issues internally prior to and following his termination, and hoped to have the same resolved locally prior to referring to this forum. In addition to the foregoing, the Complainant stated that he was in declining health during the period in question, which created added complications in respect of the referral.

Summary of Respondent’s Case as to the Preliminary Point::

Bu submission, the Respondent submitted that the Complainant had not established “reasonable cause” so as to allow an extension of time.

Findings and Conclusions as to the Preliminary Point:

Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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 6(8) provides that,

“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.”

Similarly, Section 8(2) of the Unfair Dismissals Act, provides that,

“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) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, 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 test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here the test was set out in the following terms:

“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 more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It clear from the authorities that the test places the onus on the applicant for 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 connection 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 claim that those factors were the actual cause of the delay. 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 the instant case, the Complainant has sought to ground such an application on the fact that he was unaware of the time requirements in relation to the majority of the complaints referred. In this regard, he stated that he understood that he had a period of one year to refer the complaint under the Redundancy Payments Act, and assumed that the same was true for the other complaints. In addition to the same, the Complainant referred to the “general confusion” caused by the pandemic and the fact that he was on lay-off for an extended period of time prior to the termination of his employment.

In the matter of Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that,

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

In the matter of Globe Technical Services Limited and Kristin Miller (UD/17/177), the Labour Court held that,

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

Having regard to the foregoing, and the evidence tendered by the Complainant, I find no basis to depart from these well-established principles and, as a consequence of the same, I find that these grounds do not constitute “reasonable cause” for these purposes.

In addition to the foregoing, the Complainant submitted that he attempted to discuss and resolve the subject matter of this complaint at local level. When these discussions did not resolve the issue, the Complainant referred the present complaint as a last resort.

In the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that,

“…a complainant’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”

Having regard to the foregoing, an attempt to resolve matter locally with management prior referring the same to this venue, while admirable, cannot form the basis for “reasonable cause” allowing an extension of time.

Finally, the Complainant referred to his “declining health” during the period in question and submitted that this was a factor in his failing to refer the complaints in time. While health related issues may constitute reasonable grounds for these purposes, it is noted that the Complainant has also submitted that he was unaware of the requirement to refer the complaints within the prescribed timeframe. This being the case, his health issues could not have been the operative reason for the failure to refer the same. In addition to the foregoing, the Complainant outlined numerous chronic health conditions he suffered from in the relevant period. While I have no doubt regarding the difficulties the same caused the Complainant, it is not apparent that the same had resolved or significantly improved by the date of referral and consequently there is no indication that it was the same that prevented the Complainant from referring the present complaints.

Having regard to the totality of the foregoing points, I find that the Complainant has not established “reasonable cause” so as to allow for an extension of time in accordance with Section 6(8) of the Workplace Relations Act 2015.

In such circumstances the cognisable period for all complaints bar those under the Redundancy Payments Acts, will be 17th December 2022 to the date of referral, 17th March 2023. In circumstances whereby it is common case that no employment relationship existed during that period all complaints bar those under the Redundancy Payments Acts will be determined to be not well-founded on that basis.

Summary of Complainant’s Case:

The Complainant stated that he worked as a retail manager with the Respondent.

In March of 2020, the Respondent’s premises closed as a consequence of the restrictions arising from the Covid-19 pandemic. As a result of the same, the Complainant, along with his colleagues were placed on lay-off. Notwithstanding the same, the Complainant completed some duties from home, including scanning certain documents and upgrading contracts by means of the remote system. Unfortunately, just before the Respondent’s premises was due to re-open, the Complainant suffered an injury and was unable to return.

Thereafter, when the Complainant became fit for work, the Respondent refused to allow him to return to work. During this period, the Respondent also hired three new members of staff. While the Complainant did accept that the suffered from a long-term condition during his employment, he submitted that the same did not prevent him from returning to work and that at all times he was willing and available to work, should he be called back.

In January of 2021, in circumstances whereby it was apparent that the Complainant was not going to return to work, he enquired as to his rights to a redundancy payment. By response, the Respondent stated that the Complainant had no such entitlement. At this point, the Respondent removed the Complainant from the store’s internal messaging group.

In March of 2022, it became apparent to the Complainant that there was no prospect of his returning to work at any stage. In this regard, he submitted correspondence requesting his removal from payroll. This correspondence states that the Complainant is due a redundancy payment, and referred to a form RP77 requesting such payment previously referred to the Respondent. Despite the Complainant’s correspondence being clear in this regard, the Respondent did not remove him from payroll until July of that year.

By submission, the Complainant stated that he was entitled to a statutory redundancy payment in circumstances whereby the Respondent placed him on lay-off for two years, reduced his workforce during that time and failed to request that he return to work when he was fit and able to do so.

Summary of the Respondent’s Case:

By response, the Respondent denied that the Complainant was entitled to a statutory redundancy payment.

In this regard, the Respondent accepted that the Complainant commenced a period of lay-off following the restrictions arising from the Covid-19 pandemic. Like most retail businesses, the Respondent premises re-opened some seven weeks following the imposition of the restrictions. While it was expected that the Complainant would return to work on this date, he suffered a physical injury in the days prior to the re-opening and was unable to work for a period of time. Following the same, the Respondent periodically checked in with the Complainant to ascertain his fitness for work. On each of these occasions, the Complainant stated that he was unable to return and gave no indication of any date that he might be in a position to re-commence work.

In March 2022, the Complainant requested that he be removed from the Respondent’s payroll. When the Managing Director requested that his accountant do so, he was instructed to receive a letter of resignation from the Complainant. The Complainant duly emailed such a correspondence. This correspondence stated that the Complainant wished to resign in circumstances whereby “there is no realistic chance of me returning to work in the short term given my recent illness”.

Having regard to the foregoing, the Respondent submitted that the Complainant resigned on the basis of ongoing incapacity and, consequently, was not due a statutory redundancy payment.

Findings and Conclusions:

The Complainant has alleged that the Respondent kept the Complainant on long-term lay-off for a period of well over two years. While the Complainant eventually resigned his employment, he submitted that the rationale for doing so was that the Respondent had, in fact, made him redundant and wished to avoid paying a statutory notice payment.

In this regard, Section 7(2) of the Act provides that,

“An employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to-

…

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise”

While it is noted that the Complainant resigned his employment, Section 9(1) of the Act provides that,

“…an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if, (c) the employee terminates the contract under which he is employed by the employer…such that he is entitled so to terminate it by reason of the employer‘s conduct.”

Regarding the present case, it has been submitted that the Complainant remained on lay-off for a two year period. Having reviewed the relevant factual matrix, it is apparent that this is not the case. While the Complainant did commence a period of statutory lay-off in March 2020, approximately six weeks thereafter he informed his employer that he would not be in a position to return to work and, thereafter, commenced a period of long-term sick leave.

In evidence, a conflict of evidence arose between the parties as to whether the Complainant was fit to return to work following the lifting of the restriction arising from the Covid-19 pandemic. In this respect a series of messages where opened as part of the evidence. In these messages, exchanged in July 2021, the Respondent enquires as to the Complainant’s fitness for work, to which the Complainant responds that he might be in a position to return some weeks later. These messages end with the parties agreeing to meet some time later to discuss the Complainant’s fitness to return. While the Complainant has submitted that the Respondent did not arrange his return to work thereafter, the next correspondence to issue from the Complainant stated that he wished to resign as there was “no realistic chance of me retuning to work in the short term given my recent illness”. While the Complainant has submitted that this wording was suggested by the Respondent, the fact remain that he signed and issued this correspondence to the Respondent.

It is further noted that this correspondence references a prior request for redundancy, issued by way of form RP77 some time ago. However, having considered the evidence of the Managing Director, it is apparent that no redundancy situation existed either that the time of issuing that document or the Complainant’s letter of resignation. In this respect, it is apparent that the reason for the Complainant’s resignation was medical incapacity, as stated on the letter of resignation. In such circumstances I find that the allegations raised by the Complainant are not well-founded and, as a consequence, his appeal fails.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00056717-001 Complainant under the Organisation of Working Time Act