UDD258

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044422 (CA-00055338-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 27 January 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 25 February 2025.

The following is the Decision of the Court:

DECISION:

This is an appeal by Mr Shane O’Connor (the Complainant) against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 to 2015 (the Act) against his then employer Techrete Ireland Ltd (the Respondent).  The Adjudication Officer held that the complaint was not well founded and was out of time. 

Background

The Complainant commenced employment with the Respondent on the 8 January 2018. The employment came to an end when the Complainant notified the Employer of his resignation by WhatsApp message on 21 August 2022, in which he indicated he was giving two weeks’ notice. That notice fell to expire on 4 September 2022.

Preliminary issues

 The Respondent raised as an issue the fact that the Complainants complaints were out of time.  The Complainants position was that his complaint was not out of time as he was entitled to rely on the two weeks’ notice period. He also submitted that if his complaint was found to be out of time, he had reasonable cause for it not being submitted on time.

 The Court drew the Complainant’s attention to the case law provided by the Respondent which supported the Respondent’s position that notice entitlement is not taken into account in a constructive dismissal case when assessing the date of dismissal Stamp v McGrath UD1243/1983, Walsh v HSE UD501/2007 where it was held that the date of dismissal in a constructive dismissal case is the date the Complainant submits his or hers resignation and Millett v Shinkwin [2004] ELR 319 where the Labour Court held  that “resignation is a unilateral act, which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The Contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation”.

The Complainant accepted that he had handed in his resignation on 21 August 2022 and that the WhatsApp message in the Respondent’s appendices was the message that he had sent. The Court having considered the submissions both written and oral of both parties and the case law opened to the Court, concluded that the employment had come to an end on that date 21st August 2022.

 In respect of his application for an extension of time the Complainant submitted that he had believed that the six months period for submitting a complaint ran from the expiry of his notice period as his research in respect of unfair dismissal had suggested that.  It did not indicate a different position for constructive dismissal.  He went on to state that he was busy with other matters at that time and had deadlines in respect of data requests that he had to comply with. He indicated that he was also seeking training to reskill and trying to get back on his feet. He put off lodging a complaint with the WRC as he did not want to relive the issues he had in the workplace prior to his resignation.

The Respondent submitted that the Complainant had not established reasonable cause. His own submission has been that he was busy with other things. He confirms that he was seeking advice and lodging Data Subject Access Requests during the relevant period and has not pointed to anything that could have delayed his completion of a WRC complaint form during the relevant six-month period.

Conclusion of the Court on the Preliminary Matter

TheCourt in the case of CementationSkanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338 established the test for deciding if an extension should be granted for reasonable cause. 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.

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.

The Complainant submitted that he was busy with other matters at that time and had deadlines in respect of data requests that he had to comply with

The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Complainant’s last date of employment was the 21 August 2022. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place. The Complainant’s claim was not presented to the Workplace Relations Commission until 1 March 2023 and was therefore outside of the statutory time limit.   The Court notes the reasons proffered by the Complainant. The Court finds that these reasons neither explain the delay, nor afford an excuse for the delay. Therefore, his appeal must fail.

Determination

For all the reasons set out above, the Court finds that the complaint under the Act is statute-barred and therefore must fail.  The Court cannot proceed to hear the substantive matter.

Accordingly, the Complainant’s appeal is not allowed, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
ÁM	______________________
4th March 2025	Deputy Chairman

NOTE

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