Complainant

Respondent

Parties

Martin  Harkins

Thomas Foley Painting Contractor Limited

Representatives

John Hickie of John Hickie Solicitor

Bernard Cunnane of Cunnane & Kiely Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00048587-001

11/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00049426-001

30/03/2022

The Complainant commenced his employment with the Respondent on 3 April 2017. His employment was terminated on 4 June 2020.

On 11 February 2022, the Complainant referred his first claim to the Director General of the WRC pursuant to section 39 of the Redundancy Payments Acts.

On 30 March 2022, the Complainant referred his second claim pursuant to the Redundancy Payments Acts. 

The Respondent rejects the claims.

The Complainant alleges that he did not receive any redundancy payment. 

The Complainant submits that he requested redundancy payment from the Respondent but was told that he was not getting any.

Response to the preliminary matter of time limit raised by the Respondent

On 28 July 2023, the Complaint’s solicitor wrote to the WRC stating that the delay in submitting the claim was due to communications breakdown in the workplace of the previous representative of the Complainant during Covid-19 restrictions. The Complainant himself believed that the operations of the WRC ceased during the Covid-19 period due to office restrictions. It was submitted that the Complainant’s solicitor was in the possession of a copy of a letter from Martin J McHugh & Co. dated 17 August 2020 and  a copy of RP77 referred to in it. The Complainant’s representative informed that both these were sent to the Respondent within the 52 week period and this seemed to comply with the requirement in section 24(1)(b), which is an alternative to section 24(1)(c).

It was submitted that the Complainant believed that his previous representative referred his claim within the relevant time allowed and that that hearings and correspondence had been put on hold due to Covid-19 restrictions. The Complainant felt that his job was done when he signed RP77 form. These combined circumstances constitute a reasonable explanation for the delay, which was not the personal fault of the Complainant.

It was further submitted that the complaint was made within 104 weeks of the termination and that section 24(2A) allows an Adjudication Officer to extend the 52 week period to 104 weeks in cases of reasonable cause.

At the adjudication hearing, the Complainant said that he  was told by his previous representative that he needed to go to the WRC to seek his redundancy. He could not remember when it happened. He said that he gave his representative instructions to submit his complaint, but he could not remember when did he do so. The Complainant could not recall any dates.

Substantive matter

The Complainant submits that he commenced his employment with the Respondent on 3 April 2017. His worked 40 hours a week and his gross pay was €540 per week.

The Complainant submits that his employment was terminated on 4 June 2020 by reason of redundancy due to the Respondent ceasing to trade.

The Complainant submits that form RP77 was signed by him on 11 August 2020 and posted to the Respondent by letter dated 17 August 2020 by the Complainant’s then representative.

As no payment was made to the Complainant, his then representative made a complaint to the WRC on 11 February 2022.

The Complainant submits that, as he did not receive any further information from his then representative or from the WRC, he appointed a new representative on 25 May 2023.

It was asserted that the Respondent did not dispute that there was a redundancy situation until the hearing.

On the WRC referral form, the Complainant stated that he was paid €540 gross a week. However, at end of the adjudication hearing, the Complainant asserted that he was paid €600 per week, which was disputed by the Respondent. The Complainant had no evidence to support this assertion. The Complainant was afforded an opportunity to submit post-hearing any evidence supporting his assertion. There was no communication from the Complainant or his representative in that regard.

Summary of direct evidence and cross-examination of the Complainant

The Complainant told the hearing in his sworn evidence that Mr Foley of the Respondent told him that things were getting quiet. There was no lay off considered and no notice given. The Complainant said that there was a “background issue” and there was an argument during which he was told that there was no work for him.

The Complainant said that he contacted his then representative after his dismissal and was advised to seek a redundancy payment. His representative then told the Complainant that he had a backlog but he was working on things. The Complainant said that he asked if the WRC form was sent, and he was told that all was in process.

The Complainant said that after the dismissal he also rang the Respondent’s accountant and was told that he was not entitled to any payments.

In May 2023, the Complainant engaged Mr Hickie. The Complainant thought that the WRC did not work over Covid-19.

The Complainant in his evidence initially said that he was aware of time limits, that his previous representative advised him that the time limits “are OK”.  He then said that he was not aware of the time limits.

The Complainant conceded that on the day in question, Mr Foley told him that he was dismissed because of his performance and no redundancy was mentioned.

Preliminary matter – time limit

The Respondent raised a preliminary matter of time limits. It was submitted that the claim was not made in time and that the Complainant has not demonstrated reasonable cause to extend the time limit.

Substantive matter

It was submitted, on behalf of the Respondent, that the Complainant was dismissed for poor performance and there was no redundancy situation. The Respondent submits that in 2020 it was a successful business trading profitably (copies of financial statements were provided), there were no redundancies. There were issues between the Complainant and the Respondent regarding the Complainant’s performance, and the Respondent chose to dismiss the Complainant.

It was acknowledged that the Complainant had an option of bringing a claim under the Unfair Dismissals Act, but he did not do so. He decided to bring a redundancy claim and did so outside the time limit. The Complainant has not demonstrated reasonable cause to extend the time limit. The Complainant seems to be unsure when he did what.

With regard to the form RP77 of August 2020, the Respondent submits that it was not received by the Respondent. It was not hand-delivered, there was no proof of postage. The Respondent never received the form.

Summary of direct evidence and cross-examination of Mr Foley

Mr Foley said that the Complainant suffers from a medical condition. Mr Foley made a number of adjustments to allow him to work when nobody else wanted to take him on.  However, there were ongoing issues with the Complainant’s performance unrelated to his medical condition, his jobs had to be corrected. He said that he tried to address the Complainant’s performance. On 4 June 2020 he had a conversation with the Complainant about his performance. It turned into a heated argument. Mr Foley said that he felt that the Complainant wanted to go, and he decided to dismiss him. He said it was the first time he had to dismiss someone.

Mr Foley said that there were two employees at the time of the Complainant’s dismissal and the Complainant was not replaced by a permanent employee.  Instead, he took on fixed-terms employees.

Preliminary matter – time limits

The first matter I must decide is if I have jurisdiction to hear this complaint.  In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The Acts provide for a time limit on claims for a redundancy payment as follows:

“24(1) Notwithstanding any other provision of this Act, an employee shall not be entitled to a lump sum unless before the end of the period of 52 weeks beginning on the date of dismissal or the date of termination of employment . . .(c) a question as to the right of the employee to the payment, or as to the amount of the payment, has been referred to the Director General under section 39”.

Section 24(2A) of the Acts provides that where reasonable cause is shown for a delay in presenting a claim under the Acts, the 52-week time limit at section 24(1) may be extended to a period not exceeding 104 weeks beginning on the date of dismissal or the date of termination of employment.

“24(2A) Where an employee who fails to make a claim for a lump sum within the period of 52 weeks mentioned in subsection (1) (as amended) makes such a claim before the end of the period of 104 weeks beginning on the date of dismissal or the date of termination of employment, the adjudication officer, if he is satisfied that the employee would have been entitled to the lump sum and that the failure was due to a reasonable cause, may declare the employee to be entitled to the lump sum and the employee shall thereupon become so entitled”.

It is for the Complainant to establish that there is reasonable cause for the delay in presenting a claim under the Acts to the Director General of the WRC. The general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The established test for deciding if an extension of time should be granted for ‘reasonable cause’ is set out in the Labour Court determination in the case of Cementation Skanska (Formerly Kvaerner Cementation) Limited v Carroll DWT0338 and is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour 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 DWT0338Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. 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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

In Cementation Skanska, the Court further held that:

‘The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.’

The Labour Court held in Globe Technical Services and Kristen Miller UDD1824 that ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complaint referral. The Court stated:

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

The Labour Court in its determination DWT1244 Avery Weigh-Tronix v Kindsley held 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.”

Laffoy J. in Minister for Finance v CPSU and Others 2007 18ELR36 found that ignorance of one’s legal rights cannot constitute a reasonable cause for not observing a statutory time limit.

The Complainant presented this claim/appeal to the Workplace Relations Commission on 11 February 2022. There was no dispute that the Complainant was dismissed on 4 June 2020. In view of the foregoing, I find this claim was referred some eight months outside of the time limit set out in section 24(1) of the Acts. I note the Complainant’s assertion that the reasons why he did not submit his claim within 52 weeks as required was:

·        because he thought the WRC operation was suspended during Covid-19;

·        he instructed his then representative to submit a claim and he thought his job was done once he signed RP77;

·        there was “communications breakdown” in the workplace of the previous representative during Covid-19 restrictions.

I note the inconsistency in the Complainant’s evidence as to whether or not he was aware of the time limits. The Complainant initially said that he was aware of time limits and then stated that he was not.

On the basis of the foregoing, I am not satisfied that the failure to refer the claim within the 52 week time limit was due to reasonable cause. Having carefully considered the matter, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a complaint under the Act. 

 Accordingly, I find I do not have jurisdiction to decide the claim under the Redundancy Payment Act 1967 as the claim is out of time.

I decide I do not have jurisdiction to inquire into this appeal as the appeal is out of time.

The Complainant confirmed that this claim is a duplicate of the above claim bearing reference number CA-00048587-001. The Complainant did not wish to withdraw the duplicate claim.

The Respondent agreed that this claim is a duplicate claim.

The within claim is a duplicate claim of the Complainant claim bearing reference number CA-00048587-001 that was dealt with above.

I decide to disallow the Complainant’s appeal as this is a duplicate appeal.

Time limits – redundancy-