TUD247

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00037705 (CA-00048903-001).

BACKGROUND:

The Worker appealed the Adjudication Officer Decision to the Labour Court in accordance with Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No.131 of 2003) on 10 October 2023.

DECISION:

This is an appeal by Elaine Corkery against a Decision of an Adjudication Officer (number ADJ-00037705, under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (the Regulations) against her former employer Dr Frank Whelton t/a Frank Whelton Dental.

Ms. Corkery referred her complaint to the Workplace Relations Commission (WRC) on 21 February 2022. The Adjudication Officer found that the complaint was out of time and therefore statue barred.

Ms. Corkery appealed that decision to the Labour Court. A hearing was held in Cork on 30 April 2024. The Court heard submissions from both parties on the preliminary matter of time limits and the substantive complaint under the on Transfer of Undertakings Regulations. Both Ms. Corkery and Dr Whelton gave evidence under oath.

Preliminary Matter         Time Limits

A preliminary matter was raised by the Respondent regarding the statutory time limits for lodging a complaint under the Regulations. The Complainant, Ms. Corkery, was employed as a dental nurse. Her employment transferred from the Respondent, Dr Whelton, to another party (the transferee) on 1 July 2021. The Complainant referred her complaint to the WRC on 21 February 2022.

Position of the Complainant

The Complainant referred her complaint to the WRC on 21 February 2022, which is more than six months after the date that her employment transferred to the transferrer. The Complainant submits that she returned to work on 17 September 2021 and only became aware at that point that her terms and conditions of employment had altered in breach of the Transfer of Undertakings Regulations. The Complainant attempted to resolve matters directly with her new employer. She contacted her former employer, the Respondent, to try and get the issues sorted. She was absent on sick leave from mid-October 2021. In January 2022 the Complainant sought a meeting with her new employer but could not resolve issues. At that point she sought legal advice and understood that her absence on maternity leave should be taken into account when she lodged a complaint. The Complainant submits that she did not submit a complaint before 22 February 2022 as she was unaware of a deadline for submitting a complaint to the WRC, and she wanted to resolve matters directly with her employer. The complaint was lodged within six months of the breach, if her maternity leave dates are factored into the timeline.

Position of the Respondent

The Complainant returned to work after a period of maternity and annual leave on 17 September 2021. She continued to work up until 14 October 2021 and, thereafter, was absent on sick leave. The Complainant suggests that she became aware of alleged changes to her contract of employment on her return to work. No explanation has been furnished as to why she failed to progress an application to the WRC during the four-week between her return to work and her subsequent sick leave. Furthermore, the Complainant has failed to establish why she was precluded from progressing a complaint before the WRC during her period of certified sick leave.  The Complainant has failed to establish a severe injury or incapacity such that she could not instruct a solicitor or lodge a complaint in person. In those circumstances, the Complainant has failed to establish reasonable cause sufficient to permit the Labour Court extend the statutory limitation period beyond the six-month period allowed.  She filed the complaint on 21 February 2022 some seven weeks beyond the statutory period. The Respondent relies on the established test for “reasonable cause” as set out in Cementation Skanska (formerly Kvaerner Cementation) v Carroll Determination (WTC0338) where the Labour Court determined that it is for the claimant to show that there are reasons with which both explain the delay and afford an excuse for the delay in question.

Relevant Law

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.”

Deliberations

Section 41(6) of the Workplace Relations Act, 2015 specifies the time limit that applies for lodging a complaint under the Regulations. That provisions specifies that a claim for redress regarding a breach of the Regulations cannot be referred “after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. In other words, the Act requires that that the Complainant must lodge a complaint within six-months of an alleged breach. That timeframe may be extended by a further period of 6 months if the failure to present the complaint in time was due to reasonable cause. The burden of proof in establishing the existence of reasonable cause rests with the Complainant.  To discharge that burden the Complainant must show that there are reasons which both explain the delay and afford an excuse for the delay which prevented the lodgment of the appeal within time.

The established test for deciding if an extension of time can be granted for reasonable cause is that formulated by this Court 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.”

The test formulated in Cementation Skanska 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.”

The Complainant submits that the circumstances that arose in this case giving rise to the delay meet the test of “reasonable cause”.

In this case, the Complainant’s employment transferred from the Respondent to another party on 1 July 2021. She returned to work from maternity and annual leave on 17 September 2021. She submitted a complaint to the WRC on 21 February 2022.

The Complainant submits that the primary reasons that prevented the lodgment of her appeal to the WRC during the relevant six-month period relate to (i) her focus on resolving matters directly with her employer, (ii) her absence on sick leave, and (iii) her lack of knowledge about the statutory timelines for submitting complaints to the WRC.

It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. While the reasons submitted by the Complainant may explain the delay, the Court finds that they do not provide afford a justifiable excuse for the delay. The Complainant is to be commended for trying to resolve matters directly with her employer, however, this Court has consistently found that a decision to delay referring a statutory complaint for the purposes of exhausting an alternative means to resolve a dispute does not constitute reasonable cause for the delay. While the Court accepts that the Complainant was absent from work on sick leave during much of this period, no medical evidence was submitted to suggest that she was in capable of submitting her complaint within the relevant timeline. Finally, this Court has regularly found that ignorance of the law cannot excuse the lodging of complaints outside the statutory time limits that apply.

The Labour Court is a creature of statute, and its powers and duties are derived solely from statute. The Court cannot assume a jurisdiction which is not conferred to it. In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case.

A failure on the part of an Appellant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim.

As a result, the Court finds that it has no jurisdiction to hear the complaint.

Determination

The Court finds that the reasons provided by the Complainant are not sufficient to demonstrate reasonable cause for the delay in filing her complaint with the WRC.

Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission on 21 February 2022 and is accordingly statute barred. 

In these circumstances, the Court cannot proceed to hear the substantive matter.

The appeal is rejected, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
08 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.