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PDD203

FULL RECOMMENDATION

PD/18/14

DETERMINATION NO. PDD203

ADJ-00011078 CA-00014642-001

SECTION 12 (2), PROTECTED DISCLOSURES ACT, 2014

PARTIES :

MINISTER FOR JOBS ENTERPRISE & INNOVATION
(REPRESENTED BY CATHY SMITH B.L., INSTRUCTED BY THE CHIEF STATE SOLICITORS OFFICE)

- AND -

GEORGE MC LOUGHLIN
(INSTRUCTED BY ANNE CONLON B.L., INSTRUCTED BY FP LOGUE, SOLICITORS)

DIVISION :

Chairman: Ms O'Donnell
Employer Member: Mr Marie
Worker Member: Ms Tanham

SUBJECT:
1. Appeal Of Adjudication Officer Decision No:ADJ-00011078 CA-00014642-001:

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 8 November 2018. A Labour Court hearing took place on 28 January 2020. The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by George Mc Loughlin (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00011078 given under the Protected Disclosures Act 2014 (the Act) in a claim that he was penalised by his former employer Minister for Jobs, Enterprise and Innovation (hereafter the Respondent) for making a protected disclosure. The Adjudication Officer found that the complaint was not well founded.

Background

The Complainant joined the civil service on the 4^th January 1999. In 2015 he made a protected disclosure. It is his submission that the decision by the Respondent not to grant his application for retention in the civil service beyond the age of 65 was penalisation arising from this protected disclosure and further that the decision by the Secretary General following review of that decision to uphold same by letter dated 16th January 2017 constituted penalisation. The Complainant lodged his complaint with the WRC on the 28 September 2019. Therefore, the cognisable period under the Act in terms of any act of penalisation is the 29^th March 2019 to the 28^th September 2019.

Preliminary issue.

The Respondent raised the issue that the complaint was statute barred. However, the Complainant sought an extension of time in accordance with section 41 (8) of the Workplace Relations Act 2015 which requires that reasonable cause be shown in order for an extension of time to be granted.

The Complainant submitted that the delay in submitting the complaint arose from the fact that he was in mediation with the Respondent from January to May 2017 and he believed his retention would be considered as part of that process. It was his submission that he lodged the complaint within three months of the mediation finishing.

The Respondent ‘s submission is that the fact of mediation did not prevent the Complainant from lodging his complaint and that the Complainant had offered no explanation for why the complaint had not been lodged for three months following the end of the mediation process. It was the Respondent’s submission that the Complainant had not established that “reasonable cause” existed.

The Law

The Workplace Relations Act 2015 at section 6 states:

(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 Legal Principles

The issue arising in this appeal is whether reasonable cause has been shown for an extension of time. 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 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.

The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Court finds that the reason proffered by the Complainant that he was in mediation while it might explain the delay, does not explain the delay for three months after the end of the mediation nor does it afford an excuse for the delay.

Determination

For all the reasons set out above, the Court finds that the complaint under the Act is outside the statutory time limits and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter. The Court having determined that the complaint is outside the statutory time limits does not need to address the issue of res judicata. The decision of the Adjudication Officer is varied accordingly.
The Court so Determines.

Signed on behalf of the Labour Court

Louise O'Donnell
MK ______________________
12 February 2020 Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.