Complainant

Respondent

Parties

Kim  Parkes

Scoil Ursula Preschool

Representatives

  Self-Represented

Cara Jane Walsh BL instructed by Claire Macken RDJ LLP

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-00061230-001

22/01/2024

The Complainant was an employee of the Respondent for three academic years as a Preschool Assistant on a salary of €231 for 20 hours per week. The Complainant commenced working on 30 August 2020. The latest fixed term/specified purpose contract of employment between the parties commenced on the 29th of August 2022 and ended on the 14th of July 2023. The Complainant  claims she was unfairly dismissed due to pregnancy and asserts that the Respondent failed to follow proper procedures.

 The Respondent asserts that the Complainant was out of time in submitting her complaint, and in the alternative and without prejudice, claims the Complainant was fairly dismissed. The Respondent contends the employment relationship naturally concluded on 14 July 2023 due to the expiry of the fixed term/purpose contract. The Respondent submits that the Fixed Term contract relating to the 2022/2023 academic year  was in writing,   signed by both the Respondent  and the Complainant and had a specific expiry date. It provided that the Unfair Dismissals  Acts did  apply to a dismissal consisting only of the expiry/completion of the specified purpose. Furthermore, and in the alternative,  the Respondent submits the decision not to continue the employment relationship for the 2023-2024 academic year was fair and reasonable, due to a lack of competence which was discovered in an audit by an Pobal, a body who  administers funding arrangements.  This audit revealed that  the Complainant did not possess the required qualification for the role of Preschool Assistant, despite assuring the Respondent that she possessed the necessary qualification.

The Respondent cites the termination date as 14 July 2023 with the deadline  to lodge within 6 months being  13 January 2024. The Complainant lodged the complaint on 26 January 2024. The Respondent cites Section 41(6) of the Workplace Relations Act 2015 ("the 2015 Act") where it states that an adjudication officer cannot entertain a complaint submitted after the 6-month period following the contravention date. Section 41(8) of the 2015 Act provides a potential 6-month extension where reasonable cause for the delay is shown. The Respondent submits that section 8(2) of the Unfair Dismissals Act, as amended, mirrors this requirement, stipulating that claims must be brought within 6 months of dismissal or 12 months where reasonable cause for delay exists.

The Respondent opened the following authorities:

Cementation Skanska (Formerly Kvaerner Cementation) Limited v Tom Carroll [DWT0338], the Labour Court ruled that for "reasonable cause" to be established, the claimant must provide an explanation that accounts for and justifies the delay. The Court held that the cause must be reasonable, logical, and not irrational. There must be a causal link between the cited circumstances and the delay, and it must be proven that, but for those circumstances, the claim would have been lodged on time.

In A Driver v A Fuel Provider [ADJ-00026250], the complainant submitted claims 11 months and 12 days after termination, citing ill health as the cause for delay. Despite submitting a medical report, the Adjudication Officer found that since the complainant's health had normalised within 6-8 months, but the claim was still delayed for an additional 3 months, reasonable cause was not established. The Officer concluded that jurisdiction to hear the claim did not exist.

In A Ministerial Driver v, A Government Department [ADJ-00014494], the complainant lodged a claim one day outside the 6-month deadline. Despite being professionally advised by an experienced trade union official, the Adjudication Officer found that the delay was not justified, and the claim was deemed out of time.

In the present case, the Respondent submits that the Complainant’s claim for unfair dismissal was lodged outside the statutory 6-month limit. To justify the delay, the Complainant referenced personal difficulties in an email to the WRC on 12 February 2024. She cited having a baby, upskilling, Christmas activities, and technical issues submitting the form online. She claimed to have contacted the WRC, received the form via email, and later received a hard copy by post. However, the Respondent submits  these interactions were undated, and the Respondent argues there is insufficient evidence to establish reasonable cause. The Respondent also points to a message from the Complainant to her line manager on 7 September 2023, in which she mentioned being advised to contact the WRC regarding her dismissal. This indicates awareness of potential recourse well before the 6-month deadline. Given these facts, the Respondent contends that the Complainant’s reasons for delay are not justifiable under the reasonable cause standard established by Cementation Skanska. The Respondent  requests that the Adjudication Office find the claim statute-barred due to its late submission.

In seeking an extension of the time period, the Complainant argues that she can  demonstrate ‘reasonable cause’ for delay. The Complainant gave evidence that pregnancy and other medical difficulties  prevented her from  submitting her application before the 14 January 2024. She submits that the delay was minor and caused the respondent no prejudice. She exhibited a  letter from her G.P. where it is certified that the Complainant gave birth in the weeks before the deadline on 3 November 2023. The G.P. is of the opinion that the Complainant was suffering from stress at the material time. The Complainant in evidence said she had contacted the WRC sometime in January 2024, suggesting it may have been around 3 or 4 January 2024. She stated that the WRC gave her instructions for downloading the complaint  form, but she had difficulties in doing so.

In cross examination the Complainant accepted that she knew about the six months deadline at all times since the date of termination of contract  on 14 July 2023 but did not know when exactly  the six-month period started nor its conclusion date. She accepted that she was active in completing a study module in September and that she also corresponded with the Department of Social Protection (DSP)  regarding Family Income Supplement (FIS). She further acknowledged that she corresponded with the Respondent at that time and that she (the Complainant) stated that the DSP had advised her to send a complaint to the WRC if she had an issue with dismissal, and that the foregoing events occurred before the birth of her child on 3 November 2023. She accepted that the medical certificate in relation to her stress in late 2023/ January 2024  was dated 21 November 2024.

Section 8(2) of the Unfair Dismissals acts 1977-2015 (the Act) refers to out of time complaints where it states

“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, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

As outlined above, the time period can be extended up to a maximum of 12 months from the date of the most recent alleged act. However, the test in relation to same is “reasonable cause” . This was referred to in the seminal case of DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll where the Labour Court stated:

“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.”

After careful consideration of the circumstances surrounding the  preliminary point of the Complaint  being up out time, I  acknowledge the personal challenges she faced during the period, from November to December including stress due to childbirth, the onset of the Christmas  season, and various family commitments. I understand that these factors can create significant emotional and logistical pressures, however I am not convinced that they were of a nature to impact upon the Complainant’s ability to submit a complaint to the WRC, a task that should not demand more than an hour to be set aside. This has to be considered in the context of the full six months period. From the termination of contract on 14 July 2023 to early November the evidence showed that the Complainant had an awareness of her rights including the knowledge that she could take a case to the WRC within the six-month time limit. Notwithstanding, her responsibilities around Christmas time, the Complainant gave evidence that she was in contact with the WRC in early January, when there still remained ample time to submit the complaint. She stated she had difficulty in downloading the complaint document. I found the Complainant’s evidence to be unconvincing on this point. She could give no detail, documentary or otherwise, of her interaction with the WRC nor was the nature of the download problem explained satisfactorily by her. Whilst  I  empathise with her situation, I am not satisfied, having considered all the evidence and submissions, that the Complainant showed reasonable cause for extension of the six-month period. She showed  no satisfactory causal link between the circumstances cited and the delay in accordance with Cementation Skanska. Therefore, I find that the Complaint was out-of-time and I do not have authority to hear it.

For the reasons outlined above, I find that the complaint was submitted out of time and the Complainant did not show reasonable cause for extension of the time period. I therefore decide I do not have authority to hear the complaint.

Unfair Dismissal, Out-of-Time.