LCR22670

1. Appeal of Adjudication Officer Decision No(s) ADJ-00030546 CA-00040653


BACKGROUND:

2. The Worker appealed the Adjudication Officer's Decision under Section 13(9) of the Industrial Relations Act 1969 on 5 August 2022. A Labour Court hearing took place on 28 October 2022.




DECISION:

This is an appeal of a decision of an Adjudication Officer by the Worker. The Adjudication Officer held that the complaint was out of time and that he did not have jurisdiction to hear the complaint. The Worker retired on 8^th October 2018 and her complaint form was submitted to the WRC on 28^th October 2020.

The Union submitted that it had been in discussions with the Employer prior to the Worker retiring and the issue had in fact been referred to the conciliation services of the WRC on the 5^th October 2018 and was therefore in time. The Union sought to rely on some correspondence in support of this content and provided the Court with a copy of an email from the WRC to the Employer asking the Employer if they were agreeable to attend the Employer responded stating that the internal mechanisms had not yet been exhausted. The Union also drew the Court’s attention to an email of 21^st February 2020 which the Union had sent to the HSE advising that the issue had been referred to conciliation in November 2018 and postponed but that the Union would need to reactivate it soon if the matter was not resolved.

As the issue was not resolved the Union referred the issue for adjudication on the 28 October 2020. It is the Union’s submission that the complaint is not out of time as once they had referred the issue into conciliation the time limit had been complied with and the time limit clock in effect stopped.

The Employer submitted that the Union’s position was a misunderstanding of the law around time limits. Section 26 (a) of the Industrial Relations Act 1990 states;

(1) Notwithstanding any other provision of this or any other enactment, but subject to subsection (2), an adjudication officer or the Court shall not investigate a trade dispute to which a worker who has ceased to be employed by reason of his or her retirement is a party unless

• 
  (a) the dispute was referred to the Commission for conciliation within a period of six months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred, whichever is the earlier, or

  (b)the dispute was referred to an adjudication officer or, as the case may be, the Court within the period referred to in paragraph (a)

The case before the Court is a section 13 (9) appeal of a decision of an Adjudication Officer and not a section 26 (1) referral arising from conciliation. It is clear from the correspondence that the Employer did not in November 2018 accept the invitation into conciliation and that no conciliation conference took place. It is also clear that section 26(a) of the 1990 Act provides for a case to be submitted within six months of retirement or if reasonable cause can be shown within 12 months. This complaint was submitted over two years after the Worker had retired from work.

The Court in considering the submissions from the parties on this issue notes that no explanation was forthcoming as to why if the Union believed that the conciliation was still on hold in 2020 it did not revert to and proceed with that process. The complaint before the Court arose not from conciliation but from a complaint lodged with the adjudication services of the WRC. This complaint was lodged two years after the Worker had retired.

The Court finds that this complaint is misconceived and that lodging a complaint under one process but not proceeding with that complaint cannot stop the time limit clock in respect of a complaint lodged two years later under a different process. The Court finds that the complaint is out of time and that the Court does not have jurisdiction to hear the complaint.

The Decision of the Adjudication officer is upheld

The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
10 November 2022	Deputy Chairman