Complainant

Respondent

Parties

Job Babu  Varghese

Viatel Technology Ltd

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self-represented

Kevin McNulty Venture Legal Services

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-00061625-001

19/02/2024

The complainant submitted a claim under Section 8 of the Unfair Dismissals Act, 1977 stating that he  was dismissed from his employment with the respondent on the 11th of May 2023.    

The claim of Unfair dismissal was submitted on the 19th of February 2024.    Accordingly, the cognisable 6-month period for a claim submitted on this date runs from 20th of August 2023 to 19th of February 2024.   

The WRC wrote to the complainant on 1st of March 2024 stating that the complaint appeared to have been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.  This correspondence highlighted that it appeared from the information submitted that the complaint submitted on 19th of February 2024 did not fall within the 6-month statutory timeline.

This correspondence from the Commission also indicated that an Adjudication Officer has the power to extend this time limit to a maximum of 12 months, if the complainant can demonstrate that the failure to comply with the 6-month time limit occurred as a result of ‘reasonable cause’.   This correspondence also advised the complainant that he could make a submission in this regard.

Following this correspondence the complainant requested an extension of the time limits by email dated 1 March 2024 and in further correspondence and submissions dated 16 April 2024. The respondent also provided a replying submission in respect of this pre liminary matter on 10th of April 2024.

The complainant by email dated 1 March 2024 and further submission dated 16 April 2024, requested an extension of the time limits for submission of his claim.

The complainant submits that following his dismissal in May 2023, he faced significant challenges, including immediate financial instability, the need for securing new employment, and substantial changes in his  personal and professional life.

The complainant submits that these challenges necessitated prioritizing immediate employment to ensure financial stability and to adapt to a new environment, which in turn, significantly limited his capacity to promptly address the submission of his complaint.

The complainant also submits that these circumstances were compounded by his health issues, relocation needs, and the subsequent adjustment period to a new workplace and community.

The complainant submits that given these considerations, he believes there was a reasonable cause for the delay in filing his complaint, as these events directly impacted his ability to engage with the complaint process sooner.

In addition, the complainant on 16 April 2024 provided further information/submissions in support of his application for an extension of time citing ‘Termination and Visa Issuance Circumstances’ as a reason for the delay in submitting his claim.   The termination referred to occurred on 11th of May 2023 following which the complainant states he secured the issuance of a temporary Stamp 1 visa on 23 May 2023.

The complainant added that ‘Medical Issues and Ensuing Financial Instability’ were also reasons for the delay in submitting his claim.  In this regard the complainant submits that Pre-existing medical conditions were severely impacted by the financial instability that arose from the period of unpaid leave and subsequent termination.  He submits that the impending expiry of the temporary visa on 22 November 2023 necessitated urgent action to secure employment.     The complainant at the hearing confirmed that he secured alternative employment in September 2023.  

The complainant also submitted that the ensuing period was one of transition into new employment, during which the Complainant was primarily engaged in re-establishing financial stability and seeking medical care.    He submits that this significant and stressful life event was outside the routine and placed substantial demands on the Complainant's time and resources, influencing the ability to commence legal proceedings.

The complainant submits that the personal Impact of circumstances, along with the ongoing repercussions of the respondent's earlier unsuccessful work permit applications, contributed to the complainant's decision to prioritize immediate personal challenges over the submission of a complaint to the WRC.

The Complainant asserts that these exceptional and well-documented circumstances, which unfolded within and beyond the six-month statutory period, constitute 'reasonable cause' for the delay in complaint submission.

The respondent in respect of the application for an extension of time submits that

 a. The accepted established tests put the onus on the applicant for an extension of time (the “applicant”) to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.

b. The applicant must establish a causal connection between the reason proffered for the delay and their failure to present the complaint in time.

c. The adjudicator 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.

d. The applicant has not demonstrated any grounds or reasons for the delay which might be considered exceptional, unusual or objectively anything other than normal life events.

e. The applicant has established no causal link, the normal life events, of themselves, are not shown to have any direct causal link to his failure to submit the claim on time.

f. The adjudicator could not be satisfied that any of the factors enunciated in the applicant’s request would, on their own, or in combination with others, prevent or delay a person making a complaint to the WRC.

g. The Complaint, when submitted late, appears to have been generated by an artificial intelligence tool, and it cannot have taken excessive time or effort to produce, and should have been easily capable of being produced in the 6-month statutory limit.

h. One ground enunciated for the delay was that the applicant needed to procure alternate employment and address his financial insecurity. However, by his own admission he secured new employment on 11/09/2023, more than 3 months before he submitted the Complaint.

i. The delay is not a minor one, it is more than 50% above the allowable statutory window, with no good excuse for any delay, or for a delay of that magnitude.

 j. The grounds enunciated by the applicant justifying an extension for the submission of the Complaint are so generic, unspecific, and objectively normal events, that to allow the delay in these circumstances would have the effect of completely disregarding the statutory time limits and would set the bar so low that almost every late submission to the WRC must be granted an extension for minimal supporting reasons.

Section 41 (6) and (8) of the Workplace Relations Act, 2015 states 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”.

These provisions are mirrored in Section 8(2) of the Unfair Dismissals Acts, 1977 wherein it states that:

“(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) to 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”.

The Act allows for an initial timeframe of six months within which a complaint must be lodged. It also allows for an extension of a further six months where a person was prevented from doing so due to reasonable cause.

The test for determining if an extension should be granted for reasonable cause was set out by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 38/2003 as follows:

 “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he/she would have initiated the claim in time.”

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It clear from the authorities that the test places the onus on the applicant for 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 is on the applicant to establish a causal connection 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 claim that those factors were the actual cause of the delay”. 

The complainant in this case submits that he was dismissed on 11th May 2023.   His WRC Complaint was submitted on 19th February 2024, more than 9 months later, and more than 3 months outside of the 6-month time period for submission of claims.

 By letter dated 1st March 2024 the WRC notified the parties that the complaint appeared to have been presented outside the 6-month statutory time limit and invited the Complainant to make a submission in respect of time limits.    

The complainant in advance of the hearing  provided submissions as outlined above in support of his application for an extension of the time limits.  At the hearing the complainant was given a further opportunity to make an application for an extension of the time limits from 6 months to 12 months  and was given an opportunity to adduce  evidence in support of that application.

The complainant at the hearing stated that one of the reasons for the delay in submitting his claim was due to the fact that he had to make sure his status in Ireland was legal and he had cited visa issuance circumstances as a reason for the delay.   The complainant at the hearing confirmed that he secured a temporary visa from 23rd of May 2023 and had  got a job offer in September 2023.    

The respondent at the hearing pointed out that the relevant timeline dates from May 2023 and submitted that as the complainant had secured a temporary visa from 23rd of May 2023 that ‘visa issuance circumstances’ were no longer an issue after that date.  The complainant in response to this stated that he was still faced with having to secure employment which he did in September 2023.

The complainant added that he also had to find accommodation as he had to relocate from Dublin to Galway.  The complainant in his prehearing submission had also cited preexisting medical conditions as a factor which prevented him from submitting his claim in time.   The complainant at the hearing stated that in December 2023 and January 2024 he had to  find a new GP to treat his preexisting medical conditions.     The complainant advised the hearing that he had suffered from high blood pressure and had to seek medical help and had medical appointments.  

The complainant did not provide evidence of how many appointments there were or how often or to what extent they prevented him from submitting his claim within the relevant time period.  The complainant when questioned at the hearing stated that he had no medical treatment in the time period post May 2023 as he had moved from Dublin to Galway and so had to find a new GP.   The complainant also cited financial instability as a reason for having no medical treatment post May 2023.  

The complainant at the hearing also added that he had other more pressing priorities to deal with at the time which delayed him submitting his claim to the WRC.  In outlining these priorities, he again referred back to finding a job and accommodation as well as medical issues.

I note that the complainant in this case was dismissed on 11th May 2023.   His WRC Complaint was submitted on 19th February 2024, more than 9 months later.  

In considering the reasons advanced by the complaint I must be satisfied that they both explain and justify his delay in referring the within complaint which should have been submitted by 10th of November 2023 in order to comply with the 6-month time limit.

Having considered the Complainants application for an extension of the cognisable period for the purposes of the present complaint, along with the submissions made and the evidence adduced in respect of the application for the extension of the time limits from 6 months to 12 months I find that the same do not explain or excuse the delay in referring the same.   

Having regard to the foregoing, and the authorities cited above, I find that the Complainant has not established “reasonable cause” as required by the Act.   

In such circumstances, I find that the Respondent did not unfairly dismiss the Complainant within the cognisable period of the present Act, and as a consequence of the same, his complaint is not well-founded.

I find that the Respondent did not unfairly dismiss the Complainant within the cognisable period of the present Act, and as a consequence of the same, his within complaint is not well-founded.