UDD239

1. Appeal of Adjudication Officer Decision No.ADJ-00029574 CA-0039468-001

Background

The Appellant was employed by the Respondent until the date of his dismissal which both parties agreed happened on 12^th February 2020. He made the complaint giving rise to the within appeal on 31^st August 2020. A complaint alleging a breach of the Act on 12^th February 2020, were it to be made in time, would be required to be made by 11^th August 2020.

The Respondent submitted to the Court that the originating complaint to the Workplace Relations Commission had been made outside of the time limit of six months permitted by the Act for the making of a complaint. The Appellant submitted that he had made his complaint in time and that this had been found to be the case by the Adjudication Officer.

The Court proposed to the parties that it would decide the matter which had been put forward by the Respondent to amount to a jurisdictional issue as a preliminary matter. The Court outlined that such an approach would result in a decision being made on that matter before hearing the parties in relation to the substantive matters giving rise to the complaint.

Both parties agreed that this approach was sensible and agreed that the Court should proceed in that manner.

Preliminary matter of time limits

Summary position of the Appellant

The Appellant submitted that he had relied upon his solicitor to make the complaint to the Workplace Relations Commission and that he himself had been seriously ill following his dismissal.

He asked the Court to take these mitigating factors into account.

The Court sought clarity as to whether he was in fact asking the Court to extend the time limit for the making of his complaint and he confirmed that he was.

Summary position of the Respondent

The Respondent submitted that no cogent basis had been tendered by the Appellant for the Court to extend the time limit for the making of a complaint. The Appellant was legally advised at all material times and no reasonable cause existed for the delay in making the within complaint.

The Respondent asked the Court to consider its own jurisprudence in including in the case of Cementation Skanska v Tom Carroll DWT 0388 where the Court had considered the meaning of the legislative test of ‘reasonable cause’.

The Law

The Workplace Relations Act, 2015 makes provision at Section 41(8) as follows

• (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.

• 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 test formulated in Cementation Skanska v James Riordan DWT0343 draws on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. In that case Costello J. 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.

The Court notes that the Appellant was advised by a solicitor at the material time, although he was not so advised or represented before the Court. It is clear that the Appellant’s solicitor did lodge the complaint with the Workplace Relations Commission on 31^st August 2020.

The Court has been offered no cogent reason for the delay in the lodgement of the complaint following the Appellant’s assignment of that responsibility to a solicitor. If an issue impeded or inhibited the solicitor in making the appeal in time the Court is unaware of such an issue. The Court is aware from the submission of the Appellant that he himself was ill for at least part of the time period of six months following his dismissal, but no details have been supplied to the Court of the period of time involved in that matter or the extent to which the Appellant’s serious illness impacted upon the capacity of the solicitor to make the complaint in time.

The Court has consistently taken the approach that it is for an applicant for an extension of time to establish that there is reasonable cause for a delay in making a complaint such that the Court should extend the period permitted for making a complaint. The applicant must both explain the delay and provide a justifiable excuse for the delay.

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. 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.

In this case the Court has not been provided with an explanation as to why the complaint was not made in time. It is certainly the case that the Appellant has submitted that he effectively left it to his solicitor to make the complaint, but he has not set out to the Court any explanation as to why the complaint was not actually made on time. The fact that the solicitor was, according to the Appellant, entrusted with making the complaint is not, of itself, a basis for concluding that reasonable cause existed for the delay.

Similarly, while the Court can sympathise with the Appellant on his serious illness, it has not been possible to identify how or to what degree the illness of the Appellant caused a delay in making the complaint. He has submitted that, notwithstanding his illness, he entrusted his solicitor with making the complaint. In those circumstances it is not possible to conclude that the delay has been explained by, or that a causal connection has been made, between the Appellant’s illness and the delay.

Having regard to all of these circumstances, the Court concludes that the Appellant has not established a reasonable cause for the delay in making his complaint to the WRC.

Decision

The complaint of the Appellant to the WRC was made out of time and no reasonable cause for the delay in making the complaint in time has been shown. The complaint was therefore made outside of the permissible statutory time period.

The within appeal must therefore fail. The Court consequently, albeit for different reasons, affirms the decision of the Adjudication Officer

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
28 February 2023	Chairman