Complainant

Respondent

Parties

Brenda  Cox

Osfield Limited trading as Mullingar Pharmacy

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr. Dylan West BL, instructed by Barry Healy & Co Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00056417-001

01/05/2023

The Complainant commenced employment with the Respondent on 5th October 1998. The Complainant, permanent employee, in receipt of an average weekly payment of €750.00. The Complainant’s employment terminated on 18th August 2022 by way of resignation.

On 1st May 2023, some eight months later, the Complainant referred the present complaint to the Commission. Herein, she alleged that she was compelled to terminate her employment as a result of ongoing adverse behavior on the part of the Respondent. While these allegations were fully denied by the Respondent, they submitted that the matter was out of time and could not proceed on that basis.

A hearing in relation to this matter was convened for, and finalised on, 10th 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 side during the hearing.

In circumstances whereby the preliminary issue raised by the Respondent may be determinative of the entire proceedings, this will be considered in advance of the substantive matter.

By submission, the Complainant accepted that her complaint was lodged in excess of six, but fewer than twelve, months following the termination of her employment.

In seeking to extend the relevant period for the purposes of the present complaint, the Complainant submitted that it was evident that her former employer had subjected her to ongoing adverse treatment. In particular, the Complainant submitted that the Respondent engaged in an orchestrated attempt to have the radically alter her terms and conditions in an attempt to force her to leave her employment. In such circumstances, the Complainant asked that she be treated fairly and be allowed to proceed with the complaint as referred.

In contesting the Complainant’s application, the Respondent submitted that she had not established any reasonable cause that might permit the cognisable period for the purposes of the present complaint to be extended.

In this regard, the Respondent submitted that the Complainant has not set out any grounds that might qualify as reasonable cause for these purposes. In addition to the foregoing, they submitted that the Complainant had previously referred other statutory complaints and was clearly in a position to similarity refer the present complaint within the required timeframe.

Regarding the present mater, it is common case that the complaint was referred some eight months following the termination of the Complainant’s employment.

In this regard, Section 8 (2) of the Unfair Dismissals Act, 1977 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 “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.”

Regarding the instant case, when the issue of time was raised with the Complainant, she set out the alleged poor treatment she endured at the hands of the Respondent. While the Respondent absolutely denied these allegations, they further submitted that the same cannot constituted “reasonable cause” for the purposes set out above.

Having considered the grounds set out by the Complainant, I cannot find that the same constitute “reasonable cause” for these purposes. While the Complainant is clearly of the view that she treated poorly during her employment, and particularly towards the end of the same, there is no apparent causal connection between the alleged adverse treatment and the delay in referring the complaint. In this regard, the adverse treatment alleged neither explains the reason for the delay nor is it apparent that the same prevented the Complainant from referring the complaint within the statutory timeframe.

As a consequence of the foregoing, I find that the cognisable period for the purposes of the present complaint is 1st November 2022 to 5th May 2023. As is it common case that no employment relationship exited in that time, I find that the Complainant is not well-founded.

The Complainant was not unfairly dismissed within the cognisable period and the complaint is not well-founded.

Extension, Reasonable Cause