Complainant

Respondent

Parties

Conscious  Ndebele

Divillys Limited.

Representatives

Richard Ukaga LLB

 A Manager

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-00058269-001

14/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00058269-002

14/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058269-003

14/08/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058269-004

14/08/2023

The Complainant was employed as a General Operative from January 14th 2022 to February 12th 2023 and submitted her complaints to the WRC on August 14th 2023. A Hearing into the complaints was held on May 17th 2024 where the participants were advised regarding the legal time limit of six months for submitting complaints (which can be extended by the Adjudicator to 12 months for reasonable cause) and that the complaints were submitted out of time. The general law on this issue is set out in my findings below. At the oral hearing no satisfactory explanation for the delay in submitting the complaints was provided to the Hearing and the Complainant was asked to submit their grounds for the delay in writing and the Respondent was given the opportunity to respond to these grounds in writing. The Parties were advised that a communication would issue on the preliminary matter and the substantive matter would only be subsequently heard if reasonable case for the delay in submitting the complaints was found to exist.

The Law

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

·       41(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.

41(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..

Similar time constraints apply in Sections 77.5 a and b of the Employment Equality Act..

The Complainant’s employment terminated on February 12th 2023 and the within complaints were presented to the Workplace Relations Commission on August 14th 2023 and outside the scope of Section 41.6 and 77,5a. The parties were advised of the clauses re time limitations and asked to make written submissions regarding an application for an extension of time of a further six months.

“Reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.  Here the test was set out in the following term;

“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 of 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 had not been present, he would have initiated the claim on time.”

It is clear from the authorities that the test places the onus on the Complainant seeking 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 Complainant to establish a causal link between the reason proffered for the delay and her failure to present the complaint in time.   Furthermore, I 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. 

The Complainants Representative stated he contacted the WRC for a complaint form on the 12th of January 2023 and the form was emailed to him, however he advised the form could not open and never opened  He advised several attempts were made through third parties particularly a computer systems analyst with a post graduate diploma in systems analysis from National University of Ireland Galway (NUIG) but it did not work either and so were efforts made at Loughrea computers, Loughrea library and family resource centre. The Representative advised he reverted back to the Commission on 21.06.23 and spoke with a customer advisor who agreed to send the form by post. This form was then submitted to the WRC on August 14th 2023. The other ground put forward for the delay was how the Complainant was treated while employed at work but since she commenced employment elsewhere (and more suited to her personal situation) immediately on resigning her employment I do not deem this to be of significant relevance to the delay since she was capable of taking up work elsewhere and represented by a professionally qualified person since January 2023.

I found the Complainants oral and written justification for the delay to lack credibility and requested an examination of the WRC complaints received from January 1st 2023 to June 30th 2023 and note that 636 manual complaints were submitted and 2375 on line complaints were submitted, making a total of 3011. On the WRC website there are step by step instructions on how to complete the form and a section on resolving download issues. Given this level of general activity without any issues and available instructions if there was an issue, the delay (five months) in contacting the WRC when the download issue became known, according to the Representative, is not reasonable and the delay by the Complainant between receiving the 2nd form in June 2023 and submitting it in August 14th 2023 is also not reasonable. I have to seriously question the grounds put forward by the Complainant Representative for an extension of time as the Complainant and her Representative had significant time and opportunity to deal with the matter within the six months of her departure from the employment and none of the grounds offered for the delay reasonably explain the delay. In what seems to be a unique event that a WRC form did not open then the obvious action was to contact the WRC immediately and not wait five months to do so and wait a further two months to complete the second form.

I am also conscious the Complainant took up employment immediately after leaving the Respondent and therefore the issues put forward regarding her health to justify the delay during the six months after she left the Respondents employment do not appear relevant.

I find that the Complainants Representatives explanation for the delay in submitting the complaints falls far short of what is actually required to establish reasonable cause.  Therefore, I find that the complainant has failed to establish a reasonable cause for the delay and accordingly, the matters are statue barred,

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. I deem the complaints were presented out of time and are consequently statue barred I do not have jurisdiction to adjudicate on the substantive matter. (CA-00058269-003 and CA-00058269-004)

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I deem the complaints were presented out of time and are consequently statue barred I do not have jurisdiction to adjudicate on the substantive matter. (CA-00058269-001)

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act. I deem the complaints were presented out of time and are consequently statue barred I do not have jurisdiction to adjudicate on the substantive matter. (CA-00058269-002)

Out of time