TUD202

1. An appeal of Adjudication Officer's Decision No. ADJ-00009214

BACKGROUND:

2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 18 February 2019. A Labour Court hearing took place on the 17 November 2020. The following is the Court's Determination:-




DETERMINATION :

Background to the Appeal

This is an appeal by Ms Joan Markham (‘the Complainant’) from a decision of an Adjudication Officer ADJ-00009214, dated 9 January 2019) under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (SI 131/2003) (‘the Regulations’). The Notice of Appeal was received by the Court 18 February 2019. The Court convened a case management conference in Galway on 11 September 2019 and heard the appeal in a virtual courtroom on 17 November 2020.

The Factual Matrix

Shannon College of Hotel Management (‘SCHM’) was established by Aer Rianta in 1951. It is situated in the heart of the Shannon Airport complex. SCHM was subsequently owned and managed by different entities – Dublin Airport Authority up until December 2012 and thereafter by Shannon Airport Authority.

It is common case that SCHM was the subject of a transfer of undertaking, within the meaning of the Regulations, on 1 August 2015. The staff of SCHM – including the Complainant - ceased to be employees of Shannon Airport Authority and became employees of the National College of Ireland Galway (‘NUIG’; ‘the Respondent’) as of that date.

The Complainant referred a complaint under the Regulations to the Workplace Relations Commission on 22 June 2017 alleging that the Respondent had failed to apply the terms of a collective agreement – the Cost Recovery Plan (‘CRP’)- to her in breach of her transfer rights. The CRP is an agreement concluded between management and trade unions at the DAA in February 2010. It provided an agreed basis for implementing a range of cost-saving measures during a period of financial difficulties for the DAA. It also made provision for potential pay restoration at a future date, subject to certain growth and recovery targets being achieved. The issue of restoration, along with a separate pay claim, was subsequently the subject of a referral to the Labour Court under the Industrial Relations Act 1990 which resulted in Recommendation LCR20997, dated 26 May 2015.

The Adjudication Officer declined jurisdiction to hear the within complaint at first instance as she deemed it to have been received outside the six-month limitation period provided for in the Regulations and she refused the Complainant’s application to extend the period to bring the complaint as she found that she had not established reasonable cause for the delay.

Submissions on the Jurisdictional Issue

It is submitted on the Complainant’s behalf that the issue of the status of the CRP ‘crystallised’ in September 2016 as the Complainant believes she would have benefitted from the CRP restoration of pay with effect from that date ‘had she not been transferred’. 21 September 2016 is the specific date on which the breach of the Complainant’s rights under the Regulations giving rise to the within proceedings allegedly occurred, in her submission. (This date is disputed by the Respondent.) Having regard to that date of 21 September 2019, the Complainant accepts that, as her complaint was not received by the Workplace Relations Commission until 22 June 2017, it was therefore out of time lest it is saved by an extension of time on the basis of reasonable cause. In support of her application for such an extension, the Complainant submits that there was ‘a protracted period of collective discussions in respect of the application of CRP to NUIG transferred staff’ which continued up until 20 June 2016. The following extract from the Complainant’s submission encapsulates the case made on her behalf to the Court in support of her application to extend time:

• “Where the parties were engaged in collective discussion involving numerous effected employees and a complex matter such as the restoration of the CRP following a Transfer of Undertaking with a view to resolution it is submitted that this would amount to ‘reasonable cause’ within the meaning of the Act whereby a delay resulted in the formal submission of complaints. In fact it is submitted that the lodging of complaints within the context of negotiations may have undermined their potential success. It was only after the June 20^th meeting that this decision was made after there was again no definitive outcome.”

Mr McCarroll, Solicitor for the Respondent, as has already been noted, does not accept that the dated relied on by the Complainant – 21 September 2016 – is a relevant date for the purposes of the within complaint. He suggests the alleged breach of the Regulations (although he disputes any beach occurred with respect to the Complainant, or at all) could be stated to have occurred on any one of a number of different dates which fell prior in time to 21 September 2016 (21 July 2015 – the date of the transfer; 20 May 2016 when the ‘new agreement’ was concluded; or 26 May 2016 when the Respondent confirmed in writing that it would not be applying the CRP to its staff). Mr McCarroll further submits that the Complainant has failed to satisfy the test for reasonable cause enunciated by the Court in Cementation Skanska in so far as she has neither explained the delay in initiating the within proceedings nor advanced an excuse for the delay.

The Cementation Skanska Test

The Court considered in some detail the proper interpretation to be given to term ‘reasonable cause’ in its determination in Cementation Skanska Ltd v Carroll DWT0338:

• “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.”

Has the Complainant Demonstrated Reasonable Cause?

When pressed by the Court in relation to the delay in initiating proceedings, Mr O’Donoghue told the Court that the Union had chosen to attempt to resolve the dispute with NUIG in relation to the application of the CRP through the industrial relations process, both locally and with the assistance of the Conciliation Service of the Workplace Relations Commission. The Union took the view, he said, that the there was a risk that that process could have been jeopardised if legal proceedings had been initiated while discussions were ongoing. This, in his submissions, explains the delay in submitting the Complainant’s complaint under the Regulations to the Workplace Relations Commission until the negotiations had run their course.

The Court, having carefully considered the Parties’ written and oral submissions in relation to the Complainant’s application to extend time to bring the within complaint, finds that the Complainant’s explanation for her delay in initiating proceedings has not established reasonable cause for that delay. The Union, on behalf of its affected members who had transferred to NUIG, made a very considered decision to progress the claim for application of the terms of the CRP on a collective basis only. When that process bore no fruit, a complaint under the Regulations was referred to the Workplace Relations Commission on the Complainant’s behalf. There was nothing to prevent the Complainant herself or the Union referring a complaint within time i.e. within six months of the date they believed the Complainant’s entitlement under the Regulations had crystallised, other than the Union’s perception of the potential impact referring such a complaint earlier than it did might have had on the ongoing collective negotiations. In the Court’s view, it would have been perfectly legitimate for the Complainant to have lodged her complaint within time in order to protect her position and this could have been communicated as appropriate by the Union to the Respondent.

For the foregoing reasons, the application made on the Complainant’s behalf to extend time is refused. It is not, therefore, necessary for the Court to proceed to determine the substantive element of the appeal.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
19 November 2020	______________________
CC	Deputy Chairman