Complainant

Respondent

Parties

Daniel Obineche

Karaoke Box Ltd

Representatives

Self

Act

Complaint Reference No.

Date of Receipt

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

CA-00059534-001

20/10/2023

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

CA-00059534-003

20/10/2023

The Complainant commenced employment with the Respondent on 20th November 2021 and ceased employment with the Respondent on 11th February 2023.

This matter came before the WRC as two complaints submitted on 20th October 2023. The Complainant in that form alleged contraventions of the Terms of Employment (Information) Act, 1994. Specifically, there were two complaints which stated:

-        “No contract was provided”

-        “my employer took my tip”

Submissions were then received from the Complainant on 24th January 2025. In the submissions the Complainant further alleged breaches of the Payment of Wages Act, 2022; the Unfair Dismissals Acts 1977-2015; the Employment Equality Act, 1998 and an overpayment issue which the Complainant says he discovered when regulating his tax affairs.

On 6th November 2023 a letter was sent from the WRC to the Complainant. It stated as follows:

The 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 complaint relates. It would appear from the information submitted that this complaint does 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 complaint was 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.

No response was received to the above from the Complainant. A reminder letter was sent on 19th December 2023 and no response was received to that correspondence either.

At the outset of the hearing, the Adjudication Officer highlighted the issue of the statutory time period. The relevant extracts of the Workplace Relations Act, 2015 were shown to the Complainant and, in the interests of fair procedures, he was invited to make a submission on any reasons which would be considered reasonable cause to grant an extension of the statutory timeframe of 6 months.

The Complainant made an application for an adjournment to make written submissions on this matter. This application was acceded to and it was explained to the Complainant that if he was successful then a new hearing date would be arranged for the substantive issue. It was further explained that if he was not successful that he would receive a decision explaining why.

In line with fair procedures, the Respondent was also notified of this application and written submissions were received opposing the Complainant’s application for an extension of time.

In circumstances where the issue of time limits determines whether or not there is jurisdiction to hear the claim, this is dealt with below as a preliminary issue.  

The Complainant submitted that the reason for the delay in submitting his claim was due to severe emotional distress and financial hardship, both of which prevented him from taking timely action.

He outlined childhood difficulties of a deeply personal nature and submitted a copy of a psychological report dated 12th June 2010 to substantiate this. The Complainant connected the treatment he experienced in his employment with events from his childhood and states that this triggered an immense psychological relapse which meant he was unable to take immediate legal action.

The Complainant also stated that his focus was on securing stable employment and so his financial situation impacted his ability to file the complaint within the standard timeframe.

A representative for the Respondent made submissions in respect of the application to extend the statutory time limit.

It was submitted that this issue first came to the attention of the Respondent in January 2024 when contact was received from the WRC Inspection Services. An inquiry was carried out but no irregularities were found in any payments made. The Respondent was not aware of the discriminatory aspect of the claim and queried why these claims were not made when the Complainant was still in the employ of the Respondent.

The Respondent argues that it would be grossly unfair to proceed as it is no longer in a position to defend the claims due to the inordinate amount of time it took to lodge the complaints.

It was stated that if the Respondent had been afforded the opportunity to respond to the discriminatory complaints within the statutory time, it would have been able to do so more accurately but to do so now when there is no longer access to the company files or contemporeanous employees is grossly unfair and puts the Respondent at a disadvantage.

The relevant law

Section 41 of the Workplace Relations Act, 2015 provides 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.

The effect of these provisions is that a complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the complaints were received by the Director General. This period can be extended to twelve months in accordance with the provisions of section 41(8) of the Act in circumstances where the complainant can demonstrate that there was “reasonable cause” which prevented him from referring the complaint within the prescribed time limit.

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. 

The Labour Court set 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]. In that decision it stated 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.

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.”

Taking the above into consideration, 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. 

It is evident from the above that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. The Labour Court has further emphasised that where reasonable cause is shown a decision maker must still consider if it is appropriate in the circumstances to exercise their discretion in favour of granting an extension of time and whether or not the respondent has suffered any prejudice by the delay. 

The burden of proof in establishing the existence of reasonable cause therefore rests with the Complainant. To discharge that burden, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time.

Finally, I must satisfy myself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

The Relevant Facts

The Complainant has submitted two sets of complaints to the WRC. The first on 20th October, 2023 relating to the Terms of Employment (Information) Act, 1994 and the second on 24th January 2025 relating to Payment of Wages Act, 2022; the Unfair Dismissals Acts 1977-2015; the Employment Equality Act, 1998 and an overpayment issue.

In making a determination on whether or not reasonable cause exists, I am only considering the complaints dated 20th October 2023 in relation to Terms of Employment (Information) Act, 1994. The reason for this is that these complaints were made 8 months and 9 days after the termination of the Complainant’s employment, whereas the complaints contained in the submission dated 24th January 2025 were made 23 months and 14 days after the termination of his employment.

The Act provides that there is discretion to extend the time limit where reasonable cause is shown by a maximum of a further 6 months. Therefore, for any complaint made beyond a 12 month period, the law is clear that I do not have any discretion to exercise and these claims are statute barred. I am prevented from considering any extension of time beyond 12 months and as these complaints were made more than 23 months after any possible breach of the relevant acts connected to the Complainant’s employment could have occurred then they are already, and very clearly, statute barred. I therefore do not have any jurisdiction to consider these complaints.

The only complaints that I can consider are the two claims submitted under the Terms of Employment (Information) Act, 1994. They are CA-00059534-001 and CA-00059534-003. 

The Complainant has explained his delay in submitting the complaints as being due to emotional distress and financial hardship. He did not submit any medical evidence to support the fact that he suffered an immense psychological relapse, but stated that this was due to the financial hardship he was experiencing. He connected his experience with the Respondent to traumatic events from his childhood to explain the emotional impact on him.

The Respondent outlined the prejudice it would suffer if the application for an extension under section 41(8) was granted. In particular, I note that the Respondent is no longer trading and does not have access to contemporaneous files or relevant witnesses. I am satisfied that this is a significant factor in considering the prejudice that the Respondent would suffer where a claim is made under the Terms of Employment (Information) Act, 1994 and the Respondent no longer has access to the appropriate records.

While the reasons relied upon by the Complainant may explain the delay, I am unable to find that they excuse the delay.  The onus is on the Complainant to show that if the circumstances were not present, that the complaint would have been submitted on time. In the absence of any supporting medical evidence to show that the Complainant was suffering from mental ill-health to such an extent during the relevant time that he was unable to submit the complaints, I find that he has not discharged this onus on him.

Further, I find that the prejudice which the Respondent would suffer due to the delay is a significant factor in the circumstances of this particular case.

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 therefore find that I have no jurisdiction to determine the substantive cases under the specific complaints reference CA-00059534-001 and CA-00059534-003.

I conclude that I have no jurisdiction to determine the substantive matter because the aforesaid complaints are out time thus depriving me of jurisdiction. 

In light of this finding there is no requirement for a further hearing to consider the substantive issues.

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

Statute barred – time limits – reasonable cause