Complainant

Respondent

Parties

Victor  Ogiem Udia

OCS One Complete Solution Ltd

Representatives

  Self

Naledi Bisiwe 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-00062652-001

26/02/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062652-002

26/02/2024

The Complainant commenced employment with the Respondent on 14/08/2020 as a security officer.  He was paid an hourly rate of €11.65 when he commenced employment.  The Respondent provides security services to client sites and the Complainant was assigned to a particular site. The Complainant submits that he was unfairly dismissed on 27/02/2023.  The Respondent submits that no dismissal took place and that the Complainant was on temporary layoff in line with the Respondent’s procedures.  The Respondent also raised issues in relation to time limits and these were dealt with and the parties agreed that the best approach was that a decision in relation to this would be required and this would determine if the matter would be disposed of in its entirety or if a further hearing would be required on the substantive matter.

The Complainant gave evidence on affirmation.  He outlined that he was employed as a security officer and assigned to one of the sites.  Following a complaint from the management of the site the Complainant was placed on lay off on 24/02/2023 and he was not offered any work.  He took up employment with the Respondent again on 29/12/2023.  The Complainant believes that being placed on lay off was a means to disguise his dismissal and he gave evidence that he was told by some of the Respondent’s managers that he should seek alternative work.  The Complainant stated that he was out of work for 10 months and suffered significant financial loss as a result.

The Complainant believes that he should be granted an extension to the time limit of twelve months.  He submitted his Complaint to the WRC on 26/02/2024 and he states that the correct date of his dismissal was 27/02/2023 and this would bring him inside the 12-month period of extension.  The Complainant notified the WRC of this date on 19/08/2024.

The Complainant also believes that because he made previous contact with the WRC in relation to two other cases linked to the present case this should be taken into consideration as the Respondent is trying to make technical points so as do deny him access to justice.  The Complainant believes that his initial complaint to the WRC was presented within the six-month time frame.  This matter was heard by the WRC and a decision issued.

It was submitted on behalf of the Respondent that a claim for redress under Section 8(2) of the Unfair Dismissals Acts 1997 states that a claim for redress must be initiated by giving notice in writing “within the period of 6 months beginning on the date of the relevant dismissal”.  In relation to an extension of this time Section 41(8) still provides that this 6-month time limit should apply and that it can only be extended to 12 months due to “reasonable cause”. 

It is the Respondent’s submission that the complaint was submitted to the WRC on 26/02/2024 and the cognisable period for the claim is 6 months prior to that that which is 26/08/2023.  It was submitted on behalf of the Respondent that regardless of which date is listed as the date of dismissal, i.e., 24 or 27 February 2023 he submitted his complaint to the WRC eleven and a half months after his alleged dismissal.  The complaint is clearly out of time.

It is the Respondent’s position that the Complainant has not discharged a satisfactory case for this statutory 6-month time limit to be extended.  The Respondent by way of written submission set out a number of case law and precedents set down by the courts.

The Labour Court in Cementation Skanska v Carroll DWT 38/2003:

“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 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 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”.

It was submitted on behalf of the Respondent that a six-month delay requires a significant explanation but in the case of the Complainant who submitted his complaints almost 12 months after his alleged dismissal any explanation required an even more significant explanation and must align to “reasonable cause”.

 The Respondent also noted that the High Court case of O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, where Costello J held that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.  Costello J stated:

“The phrase ‘good reason’ 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 believes he/she was justified in delaying the proceedings.  What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”

It is the Respondent’s submission that the Complainant has not provided any reasonable explanation as to why there was a delay in lodging this complaint within the six-month timeframe.  Such a lengthy delay requires a more robust explanation than a claim which was merely days out of time.  The Complainant has failed to discharge the burden of proof that reasonable cause exists for extending the six-month deadline.

The Complainant was employed as a securing officer with the Respondent.  Following a complaint from management in the client site he was placed on lay off.  The Respondent has provided details of its policy in relation to lay off and also submitted documentation which confirms its compliance with that policy as it applied to the Complainant.

The Complainant has clearly articulated that he considers his lay off to be nothing more than a cover up for his dismissal.  At the hearing the Complainant confirmed that he had no documentation which would confirm his dismissal.  He also confirmed that he did not challenge or appeal the decision to place him on lay off.

The core issue for decision is whether or not this complaint, ADJ-00050997, was submitted within the statutory time limits as specified in the Section 8(2) of the Unfair Dismissals Acts 1977 which outline that such a complaint must be “within the period of 6 months beginning on the date of the relevant dismissal”.   It is not relevant whether the date of alleged dismissal was 24th or 27th of February 2023.  It is clear that the complaint was not submitted within the six-month period.

At the hearing the Complainant believed that he was automatically entitled to a 12-month extension if he could provide an explanation for the delay.  The Complainant also submitted that the provisions of the statute of limitations should be applied. This is a flawed view of the process.  The process is well articulated in the judgement of Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301:

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 believes he/she was justified in delaying the proceedings.  What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”

The Complainant believes that he is entitled to an extension and he failed to acknowledge that this is a decision of the Adjudication Officer.  

In seeking to have the time frame extended the Complainant must:

a)       Must explain the delay and afford an excuse for the delay

b)      The explanation must be reasonable

c)       There must be an objective standard applied to the circumstances of the particular case

d)      There must be a causal link between the circumstances and the delay

e)      The Complainant must also show that if the circumstances were not present, he or she would have submitted the complaint within the six-month time frame.

The Complainant in his submissions seeking an extension of time is inconsistent with his approach.  He has filed previous complaints with the WRC in relation to the same matters and having considered his application I do not accept that he has shown reasonable cause to empower me to make a decision to extend the deadline for the submission of this complaint to the Workplace Relations Commission.  Therefore, I find that I have no jurisdiction to hear the substantive case under the specific complaint references CA-00062652-001 and CA-00062652-002.

CA-00062652-001: For the reasons outlined above I find that I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I decide that the complaint made pursuant to section 77 of the Employment Equality Act, 1998 is not well-founded.

CA-00062652-002: For the reasons outlined above I find that I have no jurisdiction to hear this complaint as it is statute-barred.  Accordingly, I decide that the complaint made pursuant to section 77 of the Employment Equality Act, 1998 is not well-founded.

Time frame.  Reasonable cause.