Complainant

Respondent

Parties

Catherine  Egan

Tallaght University Hospital

Representatives

  Self-Represented

Adrian Norton IBEC

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-00056861-001

26/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act 1998

CA-00056861-003

26/05/2023

The Complainant’s employment with the Respondent commenced on the 2nd February 2004 and she was employed in the capacity of a Healthcare Assistant. On the 18th October 2022 she notified the Respondent of her intention to retire from her role and she retired on the 11th November 2022. At the time of her retirement the Complainant was paid €407.68 net per week. The Complainant referred her complaints to the Workplace Relations Commission (hereinafter referred to as “the WRC”) under the Unfair Dismissals Act 1977 (as amended) and the Employment Equality Act 1998 (as amended) on the 26th May 2023.

The Respondent raised two preliminary issues in its written submissions furnished to the WRC on the 25th January 2024. The first related to the dual claims and the second to the issue of time limits.

Preliminary Issue – Dual Claims:

The Respondent noted that the Complainant had referred a case under both the Employment Equality Act 1998 (as amended) (hereinafter referred to as the “1998 Act”) and the Unfair Dismissals Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”). The Respondent referred to sections 101(4) and 101(4A) of the 1998 Act and submitted that from the narrative set out on behalf of the Complainant in the WRC Complaint Form it was clear that her allegations with regard to her claim for dismissal under the 1977 Act and discrimination under the 1998 Act arose from the same set of facts and that in essence it was a claim for dismissal taken under two pieces of legislation. The Respondent noted that it had received no notice that the claim under the 1977 Act had been withdrawn. Accordingly, any complaint by the Complainant for discriminatory dismissal under the 1998 Act could not properly be before the Adjudication Officer nor could the Complainant pursue a complaint under the 1998 Act for issues identical to those outlined in her complaint for constructive dismissal under the 1977 Act. The Respondent submitted that the claims are parallel and therefore the 1998 Act complaint should not proceed.

The Complainant confirmed that her complaint under the 1998 Act was a claim for discriminatory dismissal arising from the same set facts as her claim for constructive dismissal under the 1977 Act. Section 101(4) and 101(4A) of the 1998 Act were explained to the Complainant and the Complainant was afforded an opportunity to consider her position. After a period of time the hearing was resumed and the Complainant indicated that she was withdrawing her complaint under the 1998 Act and was pursuing her complaint for constructive dismissal under the 1977 Act.

Preliminary Issue – Time Limits:

Having raised the issue of time limits in its written submission furnished to the WRC on the 25th January 2024 I gave the Respondent an opportunity to set out the basis for its objection to the matter being heard. The Complainant had not sought an extension of the time for reasonable cause. The relevant statutory provisions were explained to the Complainant and she was informed that generally a complaint must be referred to the WRC within 6 months from the date of the dismissal. I asked the Complainant why she delayed in referring her complaint and whether she could show reasonable cause for any delay. I indicated that I would address the issue of time limits in the Determination.

At the conclusion of the hearing I reserved my position on whether to decide this matter on the basis of the preliminary argument presented and whether to hold a further hearing. As set out below I have decided this matter on the basis of the preliminary argument presented. Accordingly, there will not be another hearing on these matters.

The Complainant submitted documentation in advance of the hearing and confirmed that she had received the Respondent’s written submissions. At the hearing she outlined the background to her complaint and she responded to the preliminary issue regarding time limits. 

The Complainant outlined that she wrote to the Respondent on the 18th October 2022 putting it on notice of her intention to retire on the 11th November 2022 and that thereafter she sent letters of complaint to the Respondent on the 24th October 2022 and the 7th November 2022. The Complainant retired on the 11th November 2022 and she believed that the Respondent was dismissive of her complaints because she had retired. She did not receive a reply from the Respondent until the 2nd May 2023. Upon receipt of the letter dated the 2nd May 2023 she arranged an appointment with Citizens Information and thereafter she referred her complaints to the WRC on the 26th May 2023. She stated that by letter dated the 13th June 2023 she was informed by the WRC that it appeared as if her complaints did not fall within the statutory timeframe. The Complainant wrote to the WRC on the 14th June 2023 advising that she was late referring her complaints as she was awaiting a response from the Respondent which she did not received until the 2nd May 2023.

The Respondent was represented by IBEC who furnished written submissions on the 25th January 2024. The submissions and the appendices were opened and expanded upon at the hearing. The Respondent acknowledged that there had been a delay in investigating the Complainant’s complaints and responding to the Complainant’s letters in her absence however a response was sent to the Complainant on the 2nd May 2023 and a robust defence to the complaint was advanced.

The Respondent submitted that the Adjudication Officer did not have jurisdiction to adjudicate upon the complaint for unfair dismissal in circumstances where the complaint was out of time when it was referred to the WRC on the 26th May 2023. It was further submitted that there is no discretion for an Adjudication Officer to extend the time limit past 6 months unless “reasonable cause” is shown and that the Complainant has failed to establish “reasonable cause”. The Respondent referred to the cases of Cementation Skanska (formerly Kvaerner Cementation) v. Carroll (DWT0338), O’Donnell v. Dun Laoghaire Corporation [1991] ILRM 301, Skelly v. Dublin City Council (DWT212) and Business Mobile Security Ltd t/a Seneca Ltd v. John McEvoy EDA 1621.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

CA-00056861-002 - Unfair Dismissals Act 1977 (as amended)

Preliminary Issue – Time Limits

The Complainant was a longstanding employee with the Respondent. It is not disputed that by letter dated the 18th October 2022 the Complainant informed the Respondent of her intention to retire and that her employment ended on the 11th November 2022. It is also not disputed that this is the relevant date of contravention for a complaint pursuant to the 1977 Act.

Section 8(2) of the 1977 Act provides:

“(2) 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 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 Respondent concerned as soon as may be after the receipt of the notice by the Director General.”

“Reasonable cause” in section 41(8) of the Workplace Relations Act 2015 (hereinafter referred to as “the 2015 Act”) is worded slightly differently and provides in the relevant part:

“(8) 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.”

While there is a difference in wording in the 1998 Act and the 1977 Act it is noted that the relevant test in both Acts is that of “reasonable cause”.

The Complainant referred her complaint to the WRC on the 26th May 2023, outside the 6-month time limit as provided for in Section 8(2)(a) of the 1977 Act. The time limit may be extended up to 12 months where I am satisfied that there was reasonable cause for not submitting the claim within the 6-month time limit. 

The well-established test for granting an extension of time for reasonable cause is set out in the Labour Court decision of Cementation Skanska (formerly Kvaerner Cementation) v. Carroll (DWT0338) wherein the Court held:

 “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 O’Donnell v. Dun Laoghaire Corporation [1991] 1 ILRM 301 at 315 Costello J in the High Court construed the term “good reasons” 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. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] IR 181).”

The test is an objective one and the onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of “reasonable cause”.

The Complainant accepted that she referred her complaint to the WRC outside of the statutory time limit. She sought an extension of the statutory timeframe on the grounds that she had engaged with the Respondent locally on the matter and that the Respondent did not respond to her in writing until the 2nd May 2023 and that it was only upon receipt of the said letter that she sought advice and referred her complaint the to the WRC.

While the Complainant stated that the Respondent’s delay in responding to her caused her to delay in referring her complaint to the WRC, she accepted that she informed the Respondent in her letter of the 24th October 2022 that prior to writing the said letter she had a conversation with the “Work Relations Committee” as to how she should proceed with her complaints and that it was her intention to send them a copy of the complaint. At the hearing the Complainant confirmed that the reference in the said letter to “the Work Relations Committee” was to the WRC and that she had sought advice from the WRC in October 2022 regarding the procedure for referring her complaint. The Complainant stated that it was her understanding that she had to wait for a response from the Respondent before referring her complaint to the WRC. I note however that the Complainant confirmed that she was advised that the complaint had to be referred “inside the 6-months’ time limit”. In response to a question from the Adjudication Officer the Complainant stated that she could not say who she spoke to in the WRC in October 2022 other than that it was the receptionist who answered her telephone call and that she informed the individual that she was “just looking for information” on “the procedure for bringing her case”.   

The Respondent’s representative outlined the Respondent’s objection to the matter being heard on the grounds that the complaint was referred outside of the statutory timeframe and that the Complainant has not established “reasonable cause” so as to allow the cognisable period provided for in the 1977 Act to be extended. 

The Respondent submitted that the Complainant made the decision to retire from her role on or before the 18th October 2022 with her employment ending on the 11th November 2022 based on a set of circumstances that happened prior to that date and that nothing occurred in the following 6 months that in any way changed that set of circumstances so there was no objective reason why the Complainant did not refer her complaint during the statutory time period. The Respondent accepted that there was a significant delay between the Complainant setting out her complaints in writing on the 24th October 2022 and the 7th November 2022 and its response of the 2nd May 2023 however it submitted that its response to the said letters should not have affected the Complainant’s decision to refer her complaint to the WRC and that in any event on the 2nd May 2023 the Complainant was still within time to refer her complaint but did not do so. The Respondent submitted that the Complainant did not offer a credible reason for the delay or establish that the reasons relied upon both explained and excused the delay and therefore the Complainant did not satisfy the test for “reasonable cause”.

In Business Mobile Security Ltd t/a Senaca Limited v. John McEvoy (EDA 1621) the Labour Court held that the claim was statute barred stating:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”

I have also had regard to the decision in Skelly v. Dublin City Council (DWT212) wherein 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 delay.”

I am satisfied that the same principles apply in the instant case and am of the view that the Complainant cannot circumvent the time limits set out in section 8(2) of the 1977 Act by seeking to rely on a subjective view that the Respondent would resolve the matter locally. This erroneous belief should not have prevented her from complying with the statutory time limit for referring her complaint to the WRC.

I appreciate that the Complainant was upset at the manner in which her employment ended and whilst I have sympathy for the Complainant, who I found to be an honest witness, in the circumstances of this case I cannot find that the Complainant has satisfied the test for establishing “reasonable cause” as required under section 8(2)(b) of the 1977 Act and arising from this conclusion I find that time cannot be extended.

For the reasons set out above, I find that the Complainant has not established that she was prevented from referring her complaint within the time limit due to reasonable cause. Accordingly, I find that I do not have jurisdiction to determine this case under the 1977 Act as it was not submitted within the required time period and the Complainant has not established that she was prevented from doing so due to reasonable cause as per Section 8(2)(b) of the 1977 Act.   

CA-00056861-001 - Employment Equality Act 1998 (as amended)

This complaint was withdrawn at the hearing.

CA-00056861-001 - Unfair Dismissals Act 1977 (as amended)

I find that I do not have jurisdiction to determine this complaint under the Unfair Dismissals Act 1977 as it was not submitted within the required time limit and the Complainant has not established that she was prevented from doing so due to reasonable cause as per Section 8(2)(b) of the 1977 Act.   

In the circumstances, the complaint is not well-founded.

CA-00056861-003 - Employment Equality Act 1998 (as amended)

This complaint was withdrawn at the hearing.