TED247

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00042793 (CA-00052418-009)

BACKGROUND:

The worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Terms of Employment (Information) Act 1994 to 2014 on 11th December 2023. A Labour Court hearing was held on 29th February 2024. The following is the Decision of the Court:

DECISION:

This is an appeal by Szymon Tomiak against a decision of an Adjudication Officer in a complaint against his former employer Martompol, taken under the Terms of Employment (Information) Act, 1994 (the Act).

The Adjudication Officer held that the complaint was not submitted within the proper time limits for lodging complaints under the Act and that no reasonable cause was demonstrated to warrant an extension of time.

In line with the normal practice of the Court, the parties are referred to in this Decision as they were at first instance. Hence, Mr Tomiak is referred to as” the Complainant” and Martompol is referred to as “the Respondent”.

The hearing

A hearing of the Labour Court was held in Limerick on 29 February 2024. The Complainant was assisted with an interpreter.

A submission was lodged by the Complainant ten working days before the hearing date in accordance with the Labour Court Rules. The Complainant emailed further documentation in support of his submission to the Court in the days before the hearing. The Respondent’s attendance at the hearing was confirmed to the Court on the afternoon before the hearing and a submission lodged to the Court on his behalf by his representatives.

At the outset of the hearing, it became apparent that neither party had exchanged submissions. The Court sought the views of the parties if it was safe to proceed in those circumstances. Both parties indicated their preference to proceed with a hearing of the appeal on that day. The Court adjourned the hearing for a period to allow all parties review the submissions. When the hearing re-convened both parties confirmed to the Court that they had read the submissions and were satisfied to proceed with the hearing of the appeal that day. On that basis, the Court proceeded to open the appeal.

This case is linked to CD/23/399 and the parties agreed that there was an overlap between the cases in terms of witness evidence and submissions relied upon. The Court heard witness testimony from the Complainant and his employer, Mr Marcin Tomyz.

Preliminary Matters – Time Limits

There are two preliminary matters before the Court (i) whether the complaint is in time and (ii) an application for an extension of time.

The Complainant’s employment with the Respondent ceased on 22 February 2022. He lodged his complaint under the Act to the Workplace Relations Commission on 25 August 2022 which was over six months later.

Mr Brian Sugrue BL, on behalf of the Respondent, submits that the complaint is out of time as Complainant’s employment ceased on 22 February 2022 and no contravention occurred within the cognisable period for the considering the complaint.

The Complainant submits that the timeframe for considering his complaint should be counted from the 10 March 2022, which is the date of his last payslip from his employer.  As a result, he contends that his complaint was submitted within the six-month timeframe allowed.

Application for an extension of time

The Complainant seeks an extension of the timeframe allowed for considering his complaint.

He submits that he was prevented from lodging his complaint sooner as he was afraid and intimidated by his employer and suffered mental stress. Furthermore, his English was very poor, and he had difficulty getting documents translated, completing the complaint form, and seeking a solicitor.

The Complainant gave sworn evidence to the Court that his employer, Marin Tomys, came to his home in February 2022 and threatened that if he went to Court there would be trouble. He told him to “pack his suitcase and fuck off out of Ireland” and sent him a text message which said “…if you want a war”. 

Under cross examination, the Complainant denied making up the conversation at his home and said that he felt threatened. He did not report the matter to An Gardai Siochana. He did not attend a doctor in relation to his mental stress. The Complainant accepted that he contacted the WRC in May 2022 about lodging a complaint but misunderstood what he was told about the six-month period. He was not sure if that timeframe related to the last six months of his employment or the six months before he lodged the complaint. He was aware that there was one month left.

Mr Sugrue BL submits that the Complainant has not established any grounds or reasonable cause for an extension of time. The allegation of intimidation by his Marcin Tomys is denied.

Mr Tomys gave sworn evidence to the Court that he denied that he went to the Complainant’s house to intimidate him. He said they were friends, and he considered him as part of his family. They had coffee in each other’s houses. He could not recall the text message or conversation. It must have been a joke, as there were a lot of conversations.

Mr Sugrue BL submits that no medical evidence was submitted to support the contention that the Complainant suffered mental stress during the relevant time. The grounds for failing to lodge the complaint in time were at odds with arguments made at the WRC, where the Complainant attributed the delay to language difficulties.

Relevant Law

Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows:

“(6) 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.”

“(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.”

Discussion and conclusions

Was the complaint submitted in time?

The first matter for the Court to determine in this case is whether the complaint was submitted in time.

A complaint cannot be considered by an Adjudication Officer, or by this Court on appeal, unless it is presented after the expiration of the period of 6 monthsbeginning on the date of the contravention to which the complaint relates. This means that a complainant must set out a specific breach of the Act that occurred in the six-month period before the complaint was lodged.

The claim was lodged on 25 August 2022. Accordingly, the relevant period for consideration by the Court is the period from 26 February 2022 to 25 August 2022. 

It is accepted that the Complainant resigned his employment with immediate effect on 22 February 2022, and that his employment with the Respondent ceased on that date.

Finding

No specific breach of the Terms of Employment (Information) Act, 1994 was identified by the Complainant that occurred within the six-month period prior to lodging his complaint to the WRC. 

As a result, the Court finds that the complaint was submitted outside the six-month time limits for bringing complaints underthe Act.

Application for an Extension of Time

The second matter for determination is an application by the Complainant for an extension of time.

An application for extending time is made on the basis that the failure to present a complaint within the six-month timeframe was due to reasonable cause.

Should the Court find a reasonable cause for the delay in lodging the claim, the timeframe for examining a breach of the Act can be extended from six months to twelve months. If the application to extend time is granted, this would extend the relevant period for consideration by the Court to be the period from 26 August 2021 to 25 August 2022.

The established test for deciding if an extension of time can be granted for reasonable cause is that formulated in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.  The test was set out 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.”

For this Court to grant an extension of time the Complainant must both explain the delay and offer a justifiable excuse for the delay. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons to explain why the Complainant was prevented from lodging a complaint within the six-month time limit set out in the Act. The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time. Finally, the Court must satisfy itself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

The Court was told that the operative reasons for the delay in submitting a complaint under the Act in this case were due to different factors which included intimidation by the employer, mental stress, language difficulties in completing the form and difficulties finding a solicitor.

Having regard to the submissions and evidence presented at the hearing, the Court does not find that the Complainant was prevented from lodging a complaint within the six-month timeframe set down in the Act.

In coming to this decision, the Court notes the following:

There was a conflict of evidence in relation to the allegation of intimidation by the employer. The alleged encounter happened in and around the time of the Complainant’s resignation in February 2022. The Court notes that no report was made to the An Gardai Siochana. Having regard to the evidence before it, the Court is not satisfied that whatever engagement occurred between the Complainant and his employer was of sufficient seriousness to prevent the Complainant lodging a complaint to the WRC.

In May 2022, the Complainant contacted the WRC in May 2022, within the six-month timeframe for lodging a complaint. He accepts that he was provided with information about his complaint. His own evidence was that following that engagement he was aware of an issue relating to a six-month timeframe. He said that he did not fully understand the issue but thought that it related to the last six months of his employment or else the six months before he lodged the claim. He also said that he was aware there was “one month left”. The Court notes that the Complainant took no further action to clarify any matters with the WRC, although he knew that there was some issue with timelines. In light of the above, the Court cannot accept that the Complainant acted without delay in lodging the claim after contacting the WRC.

The Court notes that no medical evidence was submitted that the Complainant to support his assertion that he was suffering from medical problems such that it that prevented him lodging a complaint in time. 

Finally, the Court cannot find that a lack of translation services and/or failure to find a solicitor are a “reasonable cause” for delaying in lodging a complaint.

In all the circumstances, the Court finds that the Complainant does not meet the threshold outlined in Cementation Skanksa whereby the statutory timeframe within which he is permitted to refer his complaint under the Act can be enlarged for reasonable cause.

In the Court’s view, the reasons provided by the Complainant may provide an explanation for the delay in lodging his complaint, but they do not provide an adequate excuse for that delay.

The Court finds, in the circumstances of this case, that the Complainant has not set out reasons that justify the delay in bringing proceedings under the Act.

Accordingly, the Court rejects the application to extend time.

Decision

The complaint was made outside the time-limits specified for making complaints and is statute barred.

The appeal is not allowed.

The Court further determines that no good grounds for extending time have been advanced by the Complainant and accordingly rejects his application to extend time.

The appeal is not allowed.

The decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
GOG	______________________
17 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Garrett O'Grady, Court Secretary.