Complainant

Respondent

Parties

Patrick  McRedmond

Ambisense Limited [Company in Liquidation]

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

The Respondent did not attend and was not represented at hearing. 

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-00067273-001

08/11/2024

These matters came before the Workplace Relations Commission dated 08/11/2024.  The Complainant alleges contravention by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent.  The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 03/03/2025. 

The Complainant was employed by the Respondent as Operations Manager at all material times.    The Respondent was carrying out business in the professional scientific and technical sector.  The Complainant commenced his employment with the Respondent on 01/11/2021.  The employment ended on 16/03/2024.  The Complainant worked 45 hours per week for which he was paid €5000.00 gross per month. 

The specific complaint details relate to the non-payment of wages in the amount of €2903.00 and the Complainant submits the date on which he should have received such payment as on 29/03/2024. 

The Complainant filed his complaint with the WRC on 08/11/2024.  Therefore, the cognisable period for this complaint is from 09/05/2024 to 08/11/2024.  As the alleged contravention took place on 29/03/2024 the complaint is out of time and accordingly presents a jurisdictional issue.   

The WRC, upon receipt of the Complainant’s complaint, alerted the Complainant to the fact that his complaint was out of time by correspondence on 13/11/2024 as follows:

“…The complaint/disputeappear to have been presented after the expiration of the statutory timeline of six months from the time of the contravention. 

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 the application time limit or that the failure to present the complaint within 6 months was due to reasonable cause, you can submit a response within 14 days, outlining the reasons why you consider the failure to submit your complaint within the statutory timeframe amounted to reasonable cause.  This will be considered by an Adjudication Officer as a preliminary issue.  Otherwise the matter may be considered to be out of time and will not progress to an Adjudication hearing.”   

The duly responded on 16/11/2024 the narrative of which is set out below under the Complainant’s case as to the preliminary issue of time limits. 

As the Complainant presented as a litigant in person I provided clarification and information to him with regard to the necessary requirements and the well-established legal tests in the context of seeking an extension of time. 

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. 

CA-00067273-001

As per email to WRC of 16/11/2024. 

I have been asked to submit reasoning as to why my complaint was submitted outside of the 6 month time frame and what the reasonable cause was.  I originally submitted a complaint within the time frame and this was passed to an inspection officer CD.   After the complaint was submitted the company that it was filed against was placed into liquidation.  I incorrectly was under the impression that there was no need to re-submit an identical complaint for adjudication.  This was after discussion/advice with the assigned inspector CD.     

While ultimately I understand the onus was upon myself to understand the implications, there were a number of personal issues that caused me significant stress at the time of this incident.  In February of 2024 two days before I was to be paid by my then employer Ambisense I received a call from the CEO informing me that I would not be paid due to the revenue commission placing a judgment against the company accounts.  This was the first I was made aware of any issues with payments to revenue.  I continued to work for the remainder of February as I was told this would be quickly resolved and all back pay would be paid.  This was not the case.  At the time my wife had just had a baby in October of 2023 after being off sick during her pregnancy.  

I had a large amount of expenses unpaid by Ambisense at the time and was also owed a portion of wages that had been unpaid from previous months.  I was led to believe this would have been cleared on the February payday. The combination of my wife being off work, having just become a father and all the outstanding expenses and wages led to both a significant amount of financial and emotional stress. At the time my priority was finding a reliable source of regular income, and although I was extremely fortunate and was able to find employment relatively quickly. I was still under a large amount of emotional stress at the time. This was a contributing factor as to why I was not fully aware of my obligations with regards to re-submitting a complaint. 

The Complainant submits at hearing that he had contacted the Liquidator and had been told he was not included in the list of creditors and he submits it was not worth the hassle and stress.  

CA-00067273-001

The Respondent did not attend and was not represented at hearing. 

CA-00067273-001

Preliminary Issue Time Limits

In relation to the preliminary issue that this matter is out of time, it is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions.  In that regard section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“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.” 

I note this complaint was referred on 08/11/2024 and the alleged contravention took place on 29/03/2024.   

I find, therefore, that the herein complaint has been lodged outside the time limits prescribed by section 41(6) of the Workplace Relations Act, 2015. 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six 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 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.”

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. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that reason relied upon provides a justifiable excuse for the actual delay. 

The burden of proof in establishing the existence of reasonable cause 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

I note the Complainant initially filed the within complaint with Inspection Services.  I note discussions took place with a member of staff and the Complainant was under the impression that there was no need to re-submit an identical complaint for adjudication.  I note, however, the Complainant filed a complaint under the Terms of Employment (Information Act), 1994 (“the 1994 Act”) on 23/05/2024 which indicates that he was familiar with filing a complaint with Adjudication Services on that date which was within the relevant time period. 

The Complainant submits that he assumed his complaint pursuant to the 1991 Act would be included and covered by his complaint under the 1994 Act.  The Complainant further submits he was unaware he would have to re-submit his complaint in light of his former employer going into liquidation.  The Complainant also seeks to rely on a number of personal matters leading to financial and emotional stress on which to ground his application for an extension of time, all of which I have carefully considered. 

I find I am not satisfied that the reasons for the delay advanced by the Complainant amount to the circumstances contemplated in Cementation for the following reasons.

The Complainant’s assumption that his complaint pursuant to the 1991 Act would be included and covered by his complaint under the 1994 Act is simply not a credible or reasonable assumption as the letter from the WRC advising of the date of hearing very clearly sets out the complaint that is to be heard and the relevant legislation under which the complaint is raised and it would have been obvious to the Complainant that his complaint filed on 23/05/2024 was being heard and adjudicated upon as a single complaint.  The hearing letter advising date of hearing for the within complaint filed by the Complainant on 08/11/2024 likewise would have clearly set out the single complaint under the impleaded legislation. 

I note the complaint under the 1994 Act was filed by the Complainant with the WRC on 23/05/2024 and I am unable to accept that the filing of the within complaint could be reasonably seen to be more onerous than the filing of the aforesaid complaint.  The filing of the complaint under the 1994 Act clearly demonstrates the Complaint was familiar with the process and the procedure for the filing of an employment rights complaint to the Adjudication Services at this time.   

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.  

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 reference CA-00067273-001.

I conclude I have no jurisdiction to determine the substantive matter because the aforesaid complaint is out time thus depriving me of jurisdiction. 

Finally, it should be noted that this finding does not detract from the bona fides of the Complainant or his sense of grievance and reasons for submitting this complaint to the WRC.

CA-00067273-001

For the reasons stated above I find I have no jurisdiction to hear this complaint because it is statute-barred.  Accordingly, I decide this complaint is not well-founded. 

No appearance by Respondent; out of time; no reasonable cause;