Complainant

Respondent

Parties

Mr David  Healy

Central Statistics Office - CSO

Representatives

Self-Represented

HR

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00059311-001

10/10/2023

This matter came before the Workplace Relations Commission dated 10/10/2023 as a complaint under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 25/04/2024.     

The specific complaint CA-00059311-001 is of less favourable treatment as a fixed-term employee in respect of his conditions of employment than a comparable permanent employee.       

The Complainant was employed by the Respondent as a temporary part-time Census enumerator from 28th February 2022 until 6th May 2022. 

At the outset of hearing there were two preliminary issues raised namely the issue of time limits in respect of submitting the complaint to the WRC and the failure of the Complainant to identify a comparable full-time employee.  It was indicated to the parties that I would hear submissions on the preliminary objections and reserve my position on same.  In the event that the preliminary issue is found for the Complainant then a decision on the substantive matter will follow.  In the event the preliminary issue is found in favour of the Respondent then I am precluded from considering the substantive case. 

Both parties provided helpful written submissions and supporting documentation in advance of hearing. 

CA-00059311-001

Substantive matter

The Complainant submits he was employed as a Census enumerator in the 2022 Census.   This issue arose during the finalisation phase on Monday 2nd of May, which the Complainant had set aside to undertake the census finalisation process.  The Complainant submits management requested the enumerators expedite the task and he had prior work commitments in the following days.

The Complainant submits he was in frequent contact with his supervisor [redacted].  On 2nd the finalisation process faltered and ceased due to CSO Software issues i.e. the CMS App not escalating cases and frequent ongoing software crashes.  The Complainant submits the finalisation work could not be carried out during the day; only around 7pm were the software issues resolved, far too late.

The Complainant submits the primary reason for failure is that insufficient CSO IT staff was rostered to deal with the myriad software issues that arose at this very busy stage of Census 2022.  There was widespread inability to use the Software, and this was subsequently confirmed by his fellow enumerators on their WhatsApp group chat.   The Complainant submits the CSO were very aware of the failure of their IT systems with hundreds of enumerators unable to finalise, indeed for some regions the software issues continued into the following days.

The Complainant submits he had no choice but to carry out finalisation on 03/05/2022 as he was unavailable due to work pressures in the days after and the following weekend would be too late for CSO timeline who wanted all boxes returned by latest Thursday.

The Complainant submits this meant that on 03/05/2022 he could not work at his own employment, and he suffered a financial loss of earnings of €200 - €300.

The Complainant submits he tried to have this addressed and he contacted the payments office and the Assistant Secretary.  The Complainant submits this is nothing less than a lack of managerial oversight by senior CSO officials and they should be held accountable.

Response to preliminary matter of time limits

The Complainant submits his complaint was referred to the WRC on 11th April 2023 and he does accept that it is out of time.  The Complainant submits it is a very important case and it is appropriate that the WRC exercises its discretion to extend the time. 

Response to preliminary matter of no comparator

The Complainant submits that if a full-time employee were working on a bank holiday and there were system faults they would be able to leave and go home that evening and they would not be disadvantaged. 

CA-00059311-001

Statement from CSO in response to Mr. Healy’s complaint that he was a fixed-term employee who was, in respect of his conditions of employment, treated less favourably than a comparable permanent employee [Protection of Employees Part-Time Work Act, 2003] during his period of employment with CSO as a temporary, part-time Census Enumerator for Census 2022.

The Respondent submits Mr Healy’s fixed purpose contract as a temporary, part-time Census Enumerator commenced on 28th February 2022 and ended on 6th May 2022.   Mr Healy’s complaint was date stamped as received in the Workplace Relations Commission on 10th October 2023.

Preliminary matter – time limits

The Respondent submits Mr Healy’s complaint is out of time as it was submitted outside of the twelve-month statutory deadline.  Mr Healy has counter claimed that his complaint is dated 11th April 2023.

The Respondent submits that if Mr Healy’s counter claim is accepted his complaint remains outside the six-month time limit set out in legislation and they are not aware of any rationale for such delay.  The Respondent opens the case of Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] in support of its position. 

Preliminary matter – no comparator

The Respondent submits that Mr Healy states in respect of his conditions of employment as a fixed-term employee that he was treated less favourably than a comparable permanent employee.  The Respondent submits Mr Healy has not identified a comparable permanent employee to whom he was treated less favourably.  The Respondent submits how can Mr Healy contend that he was treated less favourably than a comparable permanent employee if he has not identified a comparable permanent employee?  The Respondent states the Complainant could have found a comparator as there are full-time enumerators on full-time contracts working at the airport collecting tourism data. 

Substantive matter

Any external work commitments which Mr. Healy failed to meet during the course of his employment as a Census Enumerator with CSO is a matter for Mr. Healy and does not ground a claim for loss of earnings against CSO. 

CA-00059311-001

Preliminary matter time limits

In relation to the preliminary objection that this matter is statute-barred, it is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions.  In that regard section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“Subject to subsection (8), 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.” 

I note the Complainant asserts his complaint was submitted to the WRC on 11/04/2023.  I note the WRC records show the complaint was received on 10/10/2023.   I note the alleged contravention took place on 06/05/2022.  Accordingly, the complaint should have been referred to the WRC within 6 months of the date of contravention.  For completeness and for the avoidance of any doubt, irrespective of which date I accept as the date of referral I find that the herein complaint has been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act, 2015. 

Notwithstanding, section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six 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.” 

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay. 

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held 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 Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.  It is clear from the authorities that the test places the onus on the Applicant on 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 on the Applicant to establish a causal link 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 complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the proceedings. 

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. 

The Labour Court in the case of A Bank v. A Worker EDA104 stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay is an “irreducible minimum requirement.” [emphasis added]

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] as follows:

“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 context in which the expression reasonable appears 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.”

For an explanation of reasonable cause to succeed –

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. 

The Complainant submits that his case is an important case and it is appropriate that the WRC should exercise its discretion in his favour.  The Complainant did not put forward any reason that either explained or excused the delay in submitting his complaint to the WRC.  I accept the Complainant believes his case is an important case and for that reason I should grant an extension of time.   

However, the Complainant has not met the standard of reasonable cause set out in the well-established test in the Cementation case of which I am mindful.   Nothing has been advanced by the Complainant that both explains and excuses the delay. 

I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time.

In light of the foregoing, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a claim to the WRC under the Workplace Relations Act, 2015.  I find I have no jurisdiction to determine the substantive case.   

Accordingly, I find that in the circumstances there is no requirement for me to consider the preliminary issue on the matter of a comparator. 

CA-00059311-001

I find I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I decide that the complaint made pursuant to section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 is not well-founded.

Reasonable cause; no jurisdiction;