Complainant

Respondent

Parties

Mr Ayeyemi  Adeba

Manguard Plus Limited

Representatives

Self-Represented

Mr Peter O’Keefe

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060233-003

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00060233-034

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00060233-039

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00060233-041

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00060233-043

24/11/2023

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

CA-00060625-001

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060625-002

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00060625-003

24/11/2023

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

CA-00060625-004

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00060625-005

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060625-006

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060625-007

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00060625-008

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060625-009

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060625-010

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 24 of the National Minimum Wage Act, 2000

CA-00060625-015

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00060625-016

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00060625-017

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00060625-018

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060625-019

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00060625-020

24/11/2023

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

CA-00060625-021

24/11/2023

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

CA-00060625-022

24/11/2023

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

CA-00060625-023

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule III of the Competition Act, 2002-2010

CA-00060625-024

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 6(1) of the Prevention of Corruption (Amendment) Act 2010

CA-00060625-025

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060625-026

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060625-027

24/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00060625-028

24/11/2023

These matters came before the Workplace Relations Commission dated 24/11/2023.  The Complainant alleges contraventions (29 in total) by the Respondent of provisions of the above listed statutes in relation to his employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 10/05/2024.

The Complainant at all material times was employed as a static security officer by the Respondent.  The Respondent company provides trained and licensed staff for security roles in office buildings, business campuses, shopping centres, warehouses, factories and commercial premises. 

The Complainant commenced employment with the Respondent (“the Transferor”) in April 2021 and a signed copy of his contract dated 15/04/2021 was exhibited. 

The Respondent representative raised two preliminary objections as to my jurisdiction in regard to time limits in the first instance together with a preliminary objection in the second instance as to whether the Respondent had a continuing legal responsibility and was properly a respondent in respect of the complaints. 

In circumstances whereby the jurisdictional issue of time limits may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. 

I note correspondence from the Workplace Relations Commission to the Complainant of 09/01/2024 provided as follows:

“You have stated the date of transfer as being 01/04/2023. Therefore, these complaints/disputesappear to have been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaints relate. It would appear from the information submitted that these complaints do not fall within the 6-month statutory timeline.

However, 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.

If you consider that your complaints were presented within 6 months or that the failure to present the complaint within 6 months was due to reasonable cause, you may make a submission accordingly to the Workplace Relations Commission. Any such submission should be presented to the Commission within 14 days of the date of this letter.”

The Complainant duly responded to correspondence from the WRC of 09/01/2024 in which he set out his reasons for his failure to comply with the 6-month time limit by correspondence of 18/01/2024 to the WRC.   

The Complainant submits he was really stressed and suffered a brain fog; his mental health was in bad shape; and he was advised by a medical practitioner to stay off work.  The Complainant submits he had to deal with a long isolation after the escape that was designed by his abuser. 

The Complainant submits he was on prescribed medication for anxiety, stress, migraine and depression.  The Complainant submits the abuse continues and it involved non-physical action with the purpose to manipulate, hurt, weaken or frighten him mentally and emotionally which resulted in distorting and confusing his thoughts and action within his everyday lives changing his sense. 

The Complainant submits he is still struggling with the complex trauma he now has in his damaged system.  The Complainant submits he is suffering from PTED (Post Traumatic Embitterment Disorder) which makes him incapable of moving on from this incident.  The Complainant submits he has to undergo some counselling sessions with a therapist before coming forward to the WRC. 

The Complainant submits his trade union refused to look into his case at first and he alleges this was because the Transferee registered him in the incorrect sector.  The Complainant submits he made “multiple visits” to the union office and he submits he was escorted to the 7th floor of the building by the receptionist.  The Complainant submits he was asked to submit a file containing his proof to the abuse to a security guard at the trade union office after a brief meeting with a union representative. 

The Complainant submits he “later came to terms that the union had wasted his time by looking the other way after the submission of his proof to the harassment and abuse.” 

The Respondent submits the Complainant is out of time and that the period pursuant to statute is substantially out of time.  The Respondent submits that the Transferor is not liable even if the averments of the Complainant have any merit.

The Respondent submits that under section 10 of the Protection of Employees (Transfer of Undertakings) Act, 2003 an employee must lodge a complaint regarding an alleged contravention of the Act within six months of the contravention occurring.  The Respondent submits this period may be extended up to 12 months if the complainant can demonstrate that there were reasonable grounds preventing the complaint from being brought within the initial six-month period.

The Respondent submits the established test for deciding if an extension should be granted for “reasonable cause” is that formulated in the Labour Court Determination Cementation Skansa (formerly Kvaerner Cementation) v. Carroll [DWT0425]. 

The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised from both and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

I am mindful of the case of Guerin v. SR Technics Ireland Limited [UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA101], the Labour Court considered the determination of an issue by way of preliminary decision.  The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J in B.T.F. v. Director of Public Prosecutions 2 ILRM 367 (the “B.T.F. Case”).  In the latter case Hardiman J held as follows

"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 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. In other cases, however, the position may be much less clear".

Furthermore, in the case of Bus Eireann v. SIPTU [PTD8/2004] the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required.”

In the case of Donal Gillespie v. Donegal Meat Processers [UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

The Complainant in the within case has raised number of complaints of contraventions of a number of statutes as set out above included among which complaints are those pursuant to Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003). 

The first matter I must decide is if I have jurisdiction to hear these complaints.  In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The aforesaid complaints were filed with the WRC on 24/11/2023. 

I note a transfer took place and it is common case the date of transfer is 01/04/2023.  The Complainant filed his complaint almost seven months after the date of transfer. 

I note the time limits are set out in the legislation to allow a complaint about a transfer to be made within a set time frame from the date of the transfer. 

The Relevant Law

Section 10 (6) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) provides as follows: 

“A rights commissioner shall not entertain a complaint under this Regulation unless it is presented to the commissioner within the period of 6 months beginning on the date of the alleged contravention to which the complaint relates, or where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint with that period, such further period, not exceeding 6 months from the expiration of the first-mentioned period, as the rights commissioner considers reasonable.”

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay.  It is a matter for the complainant to establish that there is reasonable cause for the delay. 

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.   

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held 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 Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.  It is clear from the authorities that the test places the onus on the Applicant on 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 on the Applicant to establish a causal link 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 complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the proceedings. 

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. 

The Labour Court in the case of A Bank v. A Worker [EDA104] stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay is an “irreducible minimum requirement.” [emphasis added]

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] 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.  In the context in which the expression reasonable appears it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material 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.”

For an explanation of reasonable cause to succeed –

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                 A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

The Labour Court in Salesforce.Com v. Alli Leech [EDA1615] held as follows:

“It is 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 Complainant would have presented the complaint 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 Complainant in the within case has cited certain health issues as the reason for the delay including his illness, the medication he was taking and the fact he is suffering from PTED (Post Traumatic Embitterment Disorder).   

The Complainant submits that his mental health was such that he was not in a position to issue the complaint to the WRC within the statutory time limits.  However, I find it significant that the Complainant did not appear to have any difficulty in engaging with his trade union representative, by email, one example of which was an email of 25/07/2023, in which the Complainant very competently sets out his position and his requirements thereto supported by relevant documents which he attaches to the aforesaid email. 

Furthermore, I note the Complainant submits he made “multiple visits” to the offices of his trade union during the relevant time.      

The Complainant sets out in an email to his trade union of 25/07/2023 that he is unable to continue working with the Transferee because he is unable to see a way forward.  The Complaint outlined in the aforesaid email that he was needing compensation for undue stress and compensation for his medical bills.  The Complainant states to his trade union that he wants his wages backdated and he wants compensation for being out of work for the next few months to regain his full health.  I note this exchange took place 3 months post transfer. 

I note the Complainant was competent and capable of maintaining regular communication with his trade union up to and including 11/09/2023 yet he does not file his complaint to the WRC until 24/11/2023.  It is further noteworthy the Complainant was capable of formulating a grievance which he forwarded to his trade union on 07/09/2023 and to which the trade union responded by setting out and clarifying to the Complainant the requirement that internal protocols need to be exhausted and by setting out that which constitutes the role of an industrial organiser in such matters for the Complainant’s information.    

Applying precedent, I am mindful of the Labour Court determination in the case of Dublin City Council v. Skelly [DWT 212] where it was held as follows:

“… a claimant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay.” 

I have regard to the Labour Court determination in Business Mobile Security Ltd t/a Senaca Limited v. John McEvoy [EDA 1621] wherein it is held as follows:

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice.  He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.”  [emphasis added] 

I find the Complainant’s evidence that his mental health was in bad shape and that he was struggling with complex trauma to be inconsistent and quite simply not borne out by the facts when I note the Complainant engaged in robust correspondence with his trade union during the relevant period and that he made multiple visits to the offices of the trade union.  On that basis I can find no impediment rendering him incapable of submitting his complaint and I am satisfied there was nothing to prevent the Complainant from bringing this complaint on time to the WRC as I do not accept the filing of a complaint could reasonably be seen to be more onerous than the ongoing engagement the Complainant undertook with his trade union.     

The Complainant’s evidence that his mental health was such that he was not in a position to issue the complaint to the WRC simply does not tally with the facts as presented to me by the Complainant himself in the series of emails exhibited in his written submission.  I find I am unable to reconcile the Complainant’s submission in regard to his mental health with the comprehensive and competent engagement he embarked upon with his trade union during the relevant period.     

While the reasons relied upon by the Complainant may explain the delay I am unable to find they excuse the delay.  The Complainant has not met the standard of reasonable cause set out in the well-established test in the Cementation case of which I am mindful.  I am satisfied that nothing has been advanced by the Complainant that both explains and excuses the delay.  Applying Cementation, I find the reason put forward by the Complainant does not explain or excuse the delay; it is not a reasonable explanation; and it does not persuade me to grant an extension of time.

Accordingly, I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time.  

In light of the foregoing, I find the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a claim to the WRC under the Workplace Relations Act, 2015.  I find I have no jurisdiction to determine the substantive case under the specific complaint references CA-00060233-034, CA-00060233-039, CA-00060233-041 and CA-00060233-043. 

I find I have no jurisdiction to determine the substantive matter as the complaints are out of time.  Accordingly, I find these complaints to be not well-founded. 

For the avoidance of doubt, the issue of timing is also pertinent to the claim brought by the Complainant under the Payment of Wages legislation.  As an Adjudicator, I cannot hear or entertain any complaint referred to the WRC under Section 41 of the Workplace Relations Act of 2015 if it has been presented after the expiration of a six-month period beginning on the date of the contravention (as set out in Section 41(6) of the Act).

I find that in the circumstances there is no there is no requirement for me to consider the second preliminary issue of the liability of the Respondent (Transferor).  

However, for the sake of completeness and for the avoidance of any possible doubt, I have considered it important to address this preliminary issue in this instance albeit there is no requirement for me to do so.    

The Relevant Law

The relevant law is S.I. No. 131 of 2003 – the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.  This transposes the European Directive 2001/23 “on the approximation of the laws of the member states relating to the safeguarding of employees’ rights in the event of transfers of undertaking or businesses or parts of undertakings or businesses.” 

Article 3(1) of the directive provides as follows:

“The transferor’s rights and obligations arising from a contract of employment or an employment relationship, existing on the date of a transfer, shall, by reason of such transfer, be transferred to the transferee.”

The Directive goes on to provide that member states may create a continuing liability on the transferor, post-transfer; however, this has not been transposed into S.I. No. 131 of 2003.  As a result, the basic principle in Article 3 of the Directive, that liability passes from the transferor to the transferee, is the applicable law in Ireland.

In the decision of the Court of Justice of the European Union (CJEU) in Berg v Besselsen [IRLR447] the Court referred to the option of member states to enact legislation to include the transferor in ongoing liabilities under a contract of employment; but, where this has not happened, the Court stated:

“It follows that, unless the Member States avail themselves of this possibility, the transferor is released from his obligations as an employer solely by reason of the transfer…”

On March 01/04/2023 in accordance with S.I. No. 131 of 2003, the Complainant transferred from the employment of the Respondent to a new employer.  On that date, in accordance with Regulation 4(1), any remedy for the failure of his former employer to fulfil his obligations to him must be brought against the transferee.   It follows therefore, that, as the Complainant submitted these complaints against his previous employer (the Transferor), he has identified the incorrect respondent.

CA-00060233-034

CA-00060233-039

CA-00060233-041

CA-00060233-043

For the reasons stated above I find I have no jurisdiction to hear these complaints because they are statute-barred.  Accordingly, I decide these complaints are not well-founded. 

Out of time; reasonable cause; TUPE;