Complainant

Respondent

Parties

Vincent Carden

The Sims Clinic Limited

Representatives

Represented himself 

Stephen Hanaphy BL

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062754-001

11/04/2024

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

CA-00062754-002

11/04/2024

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

CA-00062754-003

11/04/2024

The complainant joined the Sims Clinic (“the respondent”) on June 17th 2019 in the role of finance manager.  His employment was terminated on October 11th 2023.  At the date of his termination, his annual salary was €73,500.

In a letter from the group chief executive officer to the complainant on October 11th 2023, she wrote that the reason for his dismissal was because she had formed the view that “the relationship between you and the company has irretrievably broken down and it has become untenable for you to continue to work for the company.”  The complainant was paid four weeks’ pay in lieu of notice.  In his evidence at the hearing, he said that he commenced in a new job on higher pay on December 19th 2023.

At the opening of the hearing, Mr Hanaphy raised the fact that, as these complaints were submitted to the WRC on April 11th 2024, they are one day outside the time limit for which I have jurisdiction to conduct an enquiry.  As a preliminary issue therefore, I must consider if there was reasonable cause for the delay and if I can extend the time limit to 12 months.  

The complainant made the following submissions on the issue of the time limit:

He claims that there is no provision in his contract of employment to pay him in lieu of notice in circumstances in which he was dismissed due to the relationship between him and his employer having broken down.

He claims that he did not accept the respondent’s offer to pay him in lieu of notice.

He complained that, in its decision to dismiss him, his employer failed to follow its grievance and disciplinary procedure.

The complainant submitted that, while notice of his dismissal may have been sent to him by email on October 11th 2023, he was on sick leave until October 13th and he received the letter of dismissal in the post on October 12th. 

He said that one of the reasons he left it until April 11th 2024 to submit these complaints is because he was working late in his new job.

He said that it is an honest mistake not to realise that the six months terminated on April 10th 2024.

He claimed that the remarks of an officer of the WRC in a telephone conversation on April 23rd 2024 indicated that the officer was unclear about the rule regarding the time limit and the expiry after six months and one day.

He claimed that a decision to refuse his application for an extension of the time limit will prejudice him unfairly and the respondent will not be held accountable for alleged breaches of employment law.

Finally, in relation to his complaint under the Payment of Wages Act 1991, the complainant argues that his suspension from work prevented him from finalising discussions about a proposed head of function role and that this suspension made the discussions about his role impossible.  He claims that, when he returned to work after his suspension, his revised salary should have been backdated to January 25th 2023, but his suspension prevented this backdating.

As he was dismissed on October 11th 2023, to meet the time limit at section 41(6) of the Workplace Relations Act 2015, the complainant was required to submit his complaints to the WRC no later than April 10th 2024.  He didn’t send in his complaints until April 11th, a delay of one day after the statutory time limit of six months.  Section 41(8) of the Act deals with extensions of the time limit:

“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.”

It is clear from this section that, “for reasonable cause,” an extension of the time limit from six months to 12 months for submitting a complaint may be permitted. 

Considering the delay of one day, I am mindful of the Labour’s Court’s decisions on the issue[1] and the clear authority, based on the definition of a period of time as set out in the Interpretation Act 2005, that the first and last days of a specified period of time are included in the calculation of the period of time.  As the complainant was dismissed on October 11th 2023, this is the first day of six months, which ended on April 10th 2024.

The complainant seeks to argue that the fact that he was paid in lieu of notice extends the date of his dismissal to November 11th 2023.  I note the findings of the Labour Court in March 2024 concerning Fyfffes Tropical Ireland Limited v Osman[2] which Mr Hanaphy asked me to consider.  In that decision, the Court referred to s.7(2) of the Minimum Notice and Terms of Employment Act 1973, which provides as follows:

In any case where an employee accepts payment in lieu of notice, the date of termination of that person’s employment shall, for the purposes of the Act of 1967, be deemed to be the date on which notice, if given, would have expired.

The reference above to the “Act of 1967” is a reference to the Redundancy Payments Act 1967 and the Court held therefore, that Mr Osman could not rely on s.7(2) in relation to his claims under the Unfair Dismissals Act 1977.  Similarly, the complainant here cannot rely on this provision to have his complaints heard under the Unfair Dismissals Act 1977, the Protected Disclosures Act 2014 and the Payment of Wages Act 1991.

The complainant argues that the respondent was not entitled to pay him in lieu of notice for the reasons stated in his letter of dismissal.  Mr Hanaphy submitted that the behaviour of the complainant in the months leading to his dismissal destroyed the relationship of trust and confidence between him and his employer and that his contract of employment provided for pay in lieu of notice in this circumstance.

The complainant claims that he did not accept the pay in lieu of notice offered by the respondent on the date of his termination.  I note that, in the Fyffes decision, referred to above, the Court held that the complainant accepted his employer’s entitlement to pay him in lieu of notice when he signed his agreement to this clause in his contract of employment.

I do not accept the complainant’s explanation that he “left it late” to submit these complaints because he was working long hours in his new job.  At the opening of the hearing, he said that he was unemployed for nine weeks after he was dismissed by the respondent.  The submission of a complaint form to the WRC is not an onerous task, particularly for a person with the expertise and qualifications of the complainant and it is my view he had ample time to submit his complaints within the statutory time limit.

In this regard, I agree with my colleague Pat Brady, in his decision in the matter of A Senior Manager v A Financial Services Company[3], where he stated,

“In some ways, to a lay person, a delay of one day may seem inconsequential, yet it is a time limit defined in statute.  The respondent made the case that the fact that the complaint was lodged one day late in itself told against the complainant.

Certainly, a person who leaves the lodgement of a complaint to the last day (even when it is, in fact, the last day) is taking something of a gamble with good fortune.

Failure to understand or be aware of the requirements of the legislation have never provided a basis for extension of time limits.”

The complainant explained that the cause of the delay submitting his complaints was due to officer of the WRC appearing to be unsure if his complaint form was within or outside the six-month time limit.  When he made this enquiry, his complaints had already been submitted outside the time limit by one day, so the officer’s response has no bearing on his explanation. 

In his submission on behalf of the respondent, Mr Hanaphy referred to the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll[4]in which the test for reasonable cause for extending the time limit to 12 months was set out:

“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 complainant was dismissed by email on October 11th 2023.  I do not accept his evidence that he did not realise he was dismissed until the following day.  He seems to be to be an astute man, a good communicator and he is aware of his entitlements.  If it is his case that his dismissal was unfair, it was unfair on October 11th and not when he received confirmation by post on October 12th.  Regardless of this email versus post argument, on October 12th 2023, the complainant had just under six months to submit these complaints to the WRC and I am not satisfied that the has provided a reasonable explanation for not doing so.

I have decided not to grant an extension of the time limit for submitting these complaints and, for this reason, I have no jurisdiction to adjudicate further.

Time limit for submitting a complaint