UDD2413

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00042768 (CA-00052739-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 10th August 2023  in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 26th March 2024. The following is the Decision of the Court:-

DECISION:

Background to the Appeal

This is an appeal by Mr Loui Osman (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00042768, dated 27 July 2023) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer declined jurisdiction to consider the Complainant’s substantive complainant as it had been referred to the Workplace Relations Commission outside the statutory period and no grounds for extending time had been made out by the Complainant. Notice of Appeal was received on 10 August 2023. The Court heard the appeal in Dublin on 26 March 2024.

Preliminary Issue

It is common case that the Complainant was dismissed from his employment with Fyffes Tropical Ireland Limited (‘the Respondent’) on 10 March 2022, was paid in lieu of two months’ contractual notice and referred his complaint under the Act to the Workplace Relations Commission on 10 September 2022.

Counsel for the Respondent submitted that the complaint was, therefore, submitted out of time in circumstances where the Complainant’s contract of employment made provision for payment in lieu of notice, payment was made in accordance with the terms of the contract and clearly received and accepted by the Complainant.

The Complainant’s representative, relying on section 7(2) of the Minimum Notice and Terms of Employment Act 1973, submits that the Complainant’s contractual notice period should, nevertheless, be added to his termination date for the purposes of determining the ‘date of dismissal’ for the purposes of the Act.

Section 7(2) of the Act of 1973 provides:

“In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.”

The reference to ‘the Act of 1967’ is a reference to the Redundancy Payments Act 1967. It will be noted that there is no reference to the Unfair Dismissals Act 1977 in the subsection. It follows, therefore, that the Complainant cannot rely on section 7(2) of the Act of 1973 in this appeal.

In the alternative, the Complainant’s representative submits that the definition of ‘date of dismissal’ in section 1 of the Unfair Dismissals Act 1977 must be taken to mean that the Complainant’s contractual notice period should be included “in the calculation of when his date of dismissal actually occurred”. This, in the Court’s view, is a novel interpretation of the definition of ‘date of dismissal’ in the Act and one which is at odds with the established jurisprudence of this Court and of the Employment Appeals Tribunal on the matter. That jurisprudence is well-summarised by the authors of Redmond on Dismissal Law at paragraph [22.63] of the Third Edition:

“If a contract lays down a notice period, it will technically be a breach of contract to give pay in lieu of notice unless this right is reserved to the employer. If it is, and an employee accepts payment of wages in lieu of notice, the date of dismissal will be the date on which termination takes effect, as the contract will have been determined in accordance with its terms. If there is no right to give pay in lieu of notice in the contract, the EAT will treat the case as a ‘no notice’ one and will add on the contractual or statutory notice, whichever is greater.”

As already stated above, it is common case that the Respondent reserved the right to pay the Complainant in lieu of notice by means of an appropriately worded provision to that effect in his written contract of employment. The Complainant was paid in lieu of his contractual notice. It follows, therefore, that his date of dismissal, within the meaning of the Act, was 10 March 2022.

The Complainant’s representative also sought to advance the view that the Complainant did not freely accept the payment in lieu of notice in circumstances where he was not advised by the Respondent to avail himself of the opportunity to take professional advice before foregoing his legal right to notice. In making this submission, the representative sought to rely on the Court’s earlier determination in Action Health Enterprises Ltd v Michael D’Arcy UDD2019. The Court, in this case, is of the view that the Complainant’s right was to notice or payment in lieu thereof and in circumstances where the Complainant - by virtue of having signed his written contract of employment, and thereby having agreed to the Respondent’s express reservation to itself of the right to pay the Complainant in lieu of notice – cannot be said to have foregone any right. For this reason, the Court finds the Complainant’s submission in this regard to be without merit.

Application to Extend Time

An application was made on the Complainant’s behalf to extend time for the referral of the within claim to the Workplace Relations Commission. His representative submitted that the Complainant had relied on the Commission’s published guidelines regarding the referral of statutory complaints and had accordingly misinterpreted the meaning of section 8(2)(a) of the Act and the statutory time limit set out therein. Paragraph (a) provides that a complaint under the Act must be referred “within the period of 6 months beginning on the date of the relevant dismissal”. Paragraph (b) provides that the time period for the referral of a complaint can be extended “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”. This Court has given extensive consideration to the meaning to be ascribed to “reasonable cause”.

In Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425, the Court stated:

“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 his or her 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 context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. 

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. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In Salesforce.com v Leech EDA1615, the Court – having referred to the Determination in Cementation Skanska – stated:

“It is 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 the complaint 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.”

Counsel for the Respondent, in opposing the Complainant’s application to extent time, submits that the Complainant is essentially relying on ignorance of the law to support his application.

Discussion and Decision

The Court finds that the Complainant’s date of dismissal, for the reasons set out above, was 10 March 2022. The latest date for submission of his complaint under the Act to the Workplace Relations Commission was, therefore, 9 September 2022. His complaint was received a day late i.e. on 10 September 2022. The Complainant submits that his reading of the Commission’s published guidelines for the submission of complaints both explains and justifies his delay in referring the within complaint. The Court accepts Counsel’s submission that the Complainant is thereby seeking to relay on his ignorance of the law to support his application for an extension of time. In the Court’s view, the Complainant’s misunderstanding of how statutory time limits are calculated does not satisfy the test for establishing reasonable cause.

It follows, therefore, that the Court must refuse the Complainant’s application to extend time in this case. The decision of the Adjudication Officer is upheld and the appeal fails.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
28th March 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.