PDD252

PARTIES:

DIVISION:

SUBJECT:

Complaint under the Protected Disclosures Act 2014

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 25 January 2024. A Labour Court hearing took place on 12 February 2025.

The following is the Court's Decision

DECISION:

Background to the Appeal

This is an appeal by Ms Eileen Power (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00046077, dated 15 December 2023) under the Protected Disclosures Act 2014 (‘the Act’). Notice of Appeal was received in the Court on 25 January 2024. The Court heard the appeal in Waterford on 12 February 2025.

Preliminary Issue

At the outset of the hearing, a submission was made on behalf of the Cheshire Foundation in Ireland CLG (‘the Respondent’) that the within claim was statute barred. The Complainant accepted that that this was the case but made an application to extend time. She submitted that she had been assisted by her Trade Union in 2022 when she referred two complaints under the Unfair Dismissals Act 1977 (‘the Act of 1977’) to the Workplace Relations Commission but that her representatives at that time had not informed her that she “could also apply for penalisation under the Protected Disclosures Act”. She told the Court that she would have brought such a claim in 2022 had she been made aware of the Act then.

Timelines

The Complainant was employed by the Respondent as a Care Assistant between 1 September 2016 and 6 November 2022. The Complainant had given the Respondent her written notice of resignation on 17 October 2022.

The Complainant submitted her complaints under the Act of 1977 on 26 October 2022 (i.e. before her resignation had taken effect) and on 11 November 2022 (after the date her employment had terminated). In addition, the Complainant referred a dispute to the Workplace Relations Commission under section 13 of the Industrial Relations Act 1969 on 5 February 2023.

The within complaint was not referred to the Workplace Relations Commission until 1 June 2023, some seven months after the Complainant’s employment with the Respondent had ceased. It follows that the period comprehended by the Complaint is 2 December 2022 to 1 June 2023. It is common case that the Complainant has not claimed that any act of penalisation occurred within that period.

Extension of Time – The Legal Principles

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

“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 that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello Costello J. (as he then was) stated 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 O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It 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 complaint would have been presented by the Complainant 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 claim that those factors were the actual cause of the delay.  Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. 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 institution of proceedings.

Discussion and Decision

In submitting that her delay in initiating her complaint under the Act was due entirely to her then Trade Union representatives’ failure to advise her in relation to the Act and any cause of action she may have had thereunder, the Complainant is essentially saying that the cause of delay was her ignorance of the law. The Court does not accept that this is a basis on which it can accede to the Complainant’s application to extend time as it does not satisfy the requirements of the test for so doing set out in DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.

For this reason, the appeal fails and the decision of the Adjudication Officer is upheld.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
ÁM	______________________
4th March 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Áine Maunsell, Court Secretary.