UDD2255

1. Appeal Of Adjudication Officer Decision No ADJ-00028631 CA-00037534-001.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 3 August 2021 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 6 September 2022. The following is the Determination of the Court

DETERMINATION :

The parties are identified in this decision exactly in accordance with the nomenclature accorded to them on the face of the decision of the Adjudication Officer.
This matter comes before the Court as an appeal by Ralph Aderko Kodjo.wayo (the Appellant) of a decision of an Adjudication Officer given under the Unfair Dismissals Act 1977 (the Act) in his
complaint against his former employer Microsoft Ireland Msft (the Respondent).
The complaint under the Act is one of alleged constructive unfair dismissal. The Adjudication Officer decided that the complaint was not well founded.
The Complainant resigned his employment with effect from 29^th November 2019. His complaint under the Act was received by the Workplace Relations Commission (WRC) on 17^th June 2020.

Background

The complaint of the Appellant was received on 17^th June 2020. The complaint, having regard to the Act at Section 8(2)(a) and the fact that the employment terminated on 29^th November 2019, should, were it to have been received on time, been received by the WRC no later than 28^th May 2020.

The Respondent submitted that, having regard to the time limits set out in the Act, the Court had no jurisdiction to decide the appeal. The Appellant submitted that the delay in making the complaint to the WRC was for reasonable cause and, consequently, the time limit for making the appeal should, having regard to Section 8(2)(b) of the Act, be extended by the Court.

At its hearing, the Court invited the parties to consider whether the Court should decide the issue of time limits as a preliminary matter. Both parties agreed that the Court should consider this matter as a preliminary matter. The Court proposed that it would hear from the parties on the preliminary matter and, having heard from the parties, would decide whether to issue a decision on that matter before proceeding to hear from the parties on the substantive matter. Both parties agreed that the Court should proceed in that manner.

In the event, having heard from the parties on the preliminary matter, the Court decided that it would issue a decision on that matter. The Court advised the parties that if that decision supported the position of the Appellant a further hearing would be convened to deal with the substantive matter. If the decision were to be against the position of the Appellant, such decision would dispose of the matter in its entirety. Both parties confirmed to the Court at the hearing that this approach was, in their view, logical and reasonable.

The Law as regards the preliminary matter

Section 8(2) of the Act provides:

• “(2) A claim for redress under this Act shall be initiated by giving a notice in writing containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 the Director General —

  (a) within the period of 6 months beginning on the date of the relevant dismissal, or

  • (b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,
  and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

The complaint was, having regard to the Act at section 8(2)(a) referred out of time and, if the substantive complaint is to be allowed to proceed to hearing, the Appellant must first demonstrate to the satisfaction of the Court that there was reasonable cause which prevented him giving notice of his complaint to the WRC within time.

Submission of the Appellant on the preliminary matter

The Complainant submitted that a number of issues were present in the period between his resignation and the date on which he submitted his complaint under the Act to the Workplace Relations Commission. He submitted that he had received an offer of employment with another employer prior to his resignation of his employment with the Respondent on 1^st November 2019. He commenced employment with that new employer within 11 days of the expiry of his period of notice with the Respondent which was 29^th November 2019.

He submitted that he wished to pass his probation with his new employer before he would have the strength to actually pursue his case against the Respondent. He submitted that he suffered from some physical health complaints following the termination of his employment which were outlined in oral submission by his representative to the Court at the hearing; and that he was medically advised in the period between 29^th November 2018 and 28^th May 2020 that he should not initiate proceedings against the Respondent.

The Appellant’s representative clarified to the Court when requested that the meaning of his submission was that the Appellant’s health and other concerns were such as to prevent him from completing an online complaint form to the WRC at any time after 29^th November 2019 and prior to 28^th May 2020.

The Appellant’s representative advised the Court that a medical report in respect of the Appellant had recently become available. The Appellant’s representative made no application to provide that report to the Court notwithstanding the Court made the representative fully aware that he was free to make such an application

He submitted that, having regard to these matters, the Court should be satisfied that the giving of notice of his appeal to the WRC within the time limits set out at Section 8(2)(a) of the Act was prevented due to reasonable cause.

Submission of the Respondent on the preliminary matter

The Respondent submitted that no medical evidence at all was provided to the Court so as to substantiate the assertions of the Appellant’s representative and that the Court could not rely on oral submission alone to decide the health or medical status of the Appellant at the material time and the effect his health or medical status might have on his ability to make a complaint to the WRC in time.

The Respondent submitted that the Appellant commenced employment with another employer 11 days after the termination of his employment with the Respondent and had continued in that employment at all times material to the preliminary matter.

Discussion and conclusion

This Court has previously considered in some detail the meaning within the Act of the term ‘reasonable cause’ as the test for the exercise of its statutory jurisdiction to extend time for the making of complaints to a period not exceeding 12 months.

In Cementation Skanska (formerly Kvaerner Cementation Limited) v Carroll DWT0425, the Court stated:

• “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 his or her 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.”

• “It is 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 the complaint 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.”

The Court concludes that it cannot elevate the assertions of his representative in oral submissions to the Court to the status of evidence and consequently concludes that it has no basis to accept that the medical condition or health status of the Appellant acted so as to prevent him making his complaint to the WRC within the time period permitted by the Act at Section 8(2)(a).

The Court notes the Appellant’s submission that he wished to complete his probation with his new employer before pursuing his case against the Respondent. He has made no submission which would allow the Court to conclude that his wish in this respect could have prevented his completion of an online complaint form to the WRC in the time permitted by the Act at Section 8(2)(a).

Having carefully considered the parties’ written and oral submissions with respect to the preliminary matter, the Court is not satisfied that reasonable cause has been shown to have prevented the Appellant from giving notice of his complaint to the WRC within the time period permitted by the Act at Section 8(2)(a). The Court therefore concludes that it cannot exercise its jurisdiction under Section 8(2)(b) of the Act so as to extend that time limit available for the making of the within complaint.

For the reasons set out above the within appeal cannot succeed and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
IK	______________________
20 September 2022	Chairman