Complainant

Respondent

Parties

Ciara  Rowley

Newtownwhite ETNS Board of Management

Complainant

Respondent

Anonymised Parties

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Representatives

  John Rowley

Mark Curran BL instructed by Lorcan Maule Mason Hayes and Curran Sols

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-00062266-001

18/03/2024

The Complainant was employed by the Respondent as a teacher between 9 November 2020 and 31 August 2023(the date of effect of her resignation). The complaint is that due to a series of incidents and events during her employment she resigned and contends that resignation resulted directly from the actions and inaction of the employer.

The Respondent provided a series of precedents on the matter of the time limit by the EAT, the Labour Court and the WRC respectively. Particular reliance was placed on Cementation Skanska v Carroll DWT1017/2013 as the leading case on the matter of the threshold where it states

“…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 [or she] would have initiated the claim in time”.

In respect of the facts of the case the Respondent pointed to the delay being of 18 days outside of the six-month time limit. The employment ended with the resignation on the 31st of August 2023. The complaint was submitted to the WRC on the 18th of March 2024. The Complainant had not established a causal link between the delay and the issues which she identified as the reason for her delay. The Complainant was certified as out sick and signed back to work on the 26th of June 2023. That was over two months before the resignation, and she began a new job on the 1st of September 2023. The Complainant was therefore back in work and the reason for the issues which caused her health difficulties as described at the hearing no longer existed at that time in that she was in fulltime work elsewhere and was not required to go to the workplace where she described her difficulties occurring and stemming from. Reference was made to correspondence between the Complainant and her trade union representative on the 5th of September 2023 where she referred to the fact that she was employed elsewhere and that she was recovering well. This correspondence was issued shortly after the period for a submission of a complaint form began to run. Noting and respecting the Claimant’s position regarding her mental health the Respondent submits that the Complainant has not disclosed sufficient evidence to discharge the burden upon her to objectively show a causal link between any illness suffered and any delay in submitting her complaint form. The Complainant submitted receipts for counselling sessions however only two of those took place during the six-month period within which she should have submitted her complaint, i.e. on the 11th of September and the 11th of October 2023.

The Respondent asked the adjudicator to consider that the Complainant was in gainful employment as a teacher for the entirety of the six-month period for submission of the claim form as she took up a new teaching position the day after her resignation. It defies logic that the Complainant could possess the requisite level of health and mental wellbeing to work in fulltime employment yet be unable to lodge a complaint form within that same period. The adjudicator was asked to make a decision on this preliminary matter relying in particular on Hardiman J. in B.T.F. v Director of Public Prosecutions 2 ILRM 367 where it was found:

“It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without any regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded.”

The Complainant accepts that they did not meet the initial limit under the Act and at the hearing confirmed that they were seeking an extension of the time limit as provided for in section 41(8). The delay is 18 days. The representative described the difficulties experienced by the Complainant which related directly to mental health issues which she experienced including a breakdown in her mental health. Reference was made to ADJ/00037223 where the adjudication officer accepted that mental health issues could be taken into account in addressing an issue around time limits. The Complainant had experienced exceptional mental health issues and in May 2023 had suffered a severe breakdown. The Respondent’s submission suggests that this was an issue which affected her in a single period of time only. This was not the case. Those issues continued for the Complainant on into as far as March 2024 and she was not in a position to engage with matters in relation to her previous work environment during that time. The representative explained that it was only a couple of days before the complaint form was submitted that he and the Complainant discussed making a complaint and that she was well enough to be able to make that decision and to engage again in the issues which she had experienced in the employment. There was no discussion and could be no discussion about the matter until that stage given the health issues that the Complainant had experienced on an ongoing basis directly related to her workplace. The issues which she experienced continued over the course of the summer of 2023. In clarification to the hearing the representative accepted that there was no full submission provided for the hearing and that a full submission would be required and that they did not have the benefit of legal advice in approaching this matter. He detailed the issues as around the grievance procedures, the failure of the school to investigate a grievance in an appropriate manner and referred to the difficulties experienced by the Complainant and a catalogue of issues that occurred between mid-January 2023 and May 2023 which he described as a coordinated campaign. Requests to have the matters investigated at stage 4 which would have required an investigation were not accepted by the Board of Management.

The Complainant acknowledges that the date the complaint was submitted was outside of time and although they did not seek to rely on the ignorance of the time limits in respect of such matters, there is a general obligation on any complainant to inform themselves or to take advice which will inform them of their options and the limitations to those options. What happened in this case based on Mr Rowley’s submission was that the Complainant and her family were indeed working through a difficult situation over a period of months and only began to consider making a complaint when the actual initial time limit for making such a complaint had already passed. It is accepted that mental health issues can provide a causal link in a delay in submitting a complaint on time such as would justify an extension of the time limit set out in section 41(5) of the Act. It is also the case that the standard for providing an extension is the term reasonable and not exceptional, the term exceptional having been contained in the Unfair Dismissals Act as it applied until the incorporation of the Workplace Relations Act in 2015. There are in fact very few examples of cases where extensions on the basis of an interpretation of the word reasonable are available to adjudication officers as determined by the Labour Court since 2015. We are largely left with the interpretation that is given to Cementation Skanska and there may well be a reason for concern that the interpretation being given to that decision is one which moves the term further from reasonable towards exceptional given that so few exceptions have appeared in the interim.However, we are as they say where we are and the overwhelming tendency  is to apply Cementation Skanska at both first and second instance as one which requires what may described as an actively preventative cause for the failure to comply with the time limits. That decision largely mirrors a separate judgement of the High Court and the standard of test in the Organisation of Working Time Act on which the Cementation Decision is based, was also the reasonableness test at that time. In this case there is no medical evidence to support a contention that the Complainant was prevented from making a complaint due to her mental health issues to such an extent that she was unable to make such a complaint within six months of her resignation.. The point made by the Respondent about the dates of the counselling sessions supported by receipts is well made in relation to the time limits issue i.e. those two sessions fell well within the six month period.

The inference from the submission on behalf of the Complainant that her difficulties experienced in the school rendered her unable to make a complaint about those difficulties because of the impact that she described on her. might appear to form a causal link in circumstances where the Complainant was unable to function mentally or physically in any meaningful way in the period following her resignation. However, to examine an issue objectively is also to apply a test of reasonableness to all of the facts which existed during that six-month period. It is my view that, the circumstances where a complainant was functioning normally and indeed positively in that same six-month period in another employment undermines any potential for finding that a causal link existed during that period which acted to prevent a complaint being submitted by her or on her behalf.  It is simply asking too much to separate her functioning within a teaching role in one location, to ignore that fact and instead to focus solely on the difficulties and the impact of her difficulties in her previous employment even if those difficulties were ongoing to her mind for a period of time. It would not have been difficult for someone other than the Complainant to consider or inform themselves of  the time limits for potentially making such a complaint. Not wanting to engage with the previous employment is understandable but that situation does not provide a causal link which meets the test required by case law in this area.

 The representative for the Complainant said that they were not aware of any issue around time limits until a couple of days before the complaint was submitted. At the same time the Complainant and her representative had the ability to make a complaint which is quite complicated, which is a constructive dismissal case, and to put that case together in a couple of days and to submit it knowing they were out of time.  From the submission to the hearing, it is reasonable to conclude that what the Complainant is seeking is a hearing, an opportunity to have the case heard in a public arena. That requires me to decide that the purpose of a hearing is to satisfy the Complainant rather than to administer justice to all parties. In my respectful view, the Complainant is effectively asking that the time limits be ignored in order that she may have her day out. The cost of that day out is to impose significant burden on the Respondent in terms of defending that case, providing witnesses from among the staff and members of the Board for the duration of a hearing which may run to more than one day in all likelihood given the extent of the grievances raised by the Complainant in her submission and referenced at the hearing. I conclude that to allow the WRC to be used as a forum for ventilation of grievances where someone has not complied with the minimum requirements under the legislation would be an abuse of process administered by me as an adjudication officer which I could not justify in this case. Recognising that a difficult employment situation may have profound effects on an individual who considers themselves to have been aggrieved and has experienced ill health directly related to those workplace issues does not provide an adjudication officer with licence to ignore the obligations of the legislation and the equal entitlement of the Respondent side to have that legislation interpreted fairly.

The case made out on behalf of the Complainant does not provide a reasonable cause to extend the time limit beyond the initial six months set out in section 41(5) of the Workplace Relations Act and I decline to do so.

CA-00062666-001The Complaint by Ciara Rowley against Newtownwhite ETNS was not submitted within the six-month time limit provided for under the legislation and as her application for an extension of that time limit isrejected, I declare the complaint under the Unfair Dismissals Act 1977 not well founded.

Constructive Dismissal-Time Limit