TUD233

1. Appeal of Adjudication Officer Decision No(S) ADJ-00036751 CA-00047868-004

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 20 April 2022. A Labour Court hearing took place on 6 September 2023. The following is the Determination of the Court:

DETERMINATION:

This matter comes before the Court as an appeal by Seamus Hayes (the Appellant) of a decision of an Adjudication Officer given under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 (the Regulations) in his complaint against his former employer, EIR (the Respondent).

Preliminary issue

The Respondent submitted that the Appellant’s complaint was manifestly out of time having regard to the Act.

The Appellant confirmed to the Court that his complaint related to the issuance to him of a contract of employment by the Respondent which he signed in October 2019. He contended that the issuance of that contract was a breach of the Regulations.

There is no dispute that the within complaint was made to the Workplace Relations Commission on 23^rd December 2021.

The hearing of the Court

The Court heard the submissions of both parties on the substantive matters at issue in the within appeal and invited both parties to tender sworn evidence on any matter.

The Court set out to the parties that the matter of time limits applicable to the complaint was a matter that could be dispositive of the entire matter and set out that it would address that matter initially in its decision. Neither party objected to that approach.

Law applicable to the preliminary issue.

Part 2 of Schedule 5 of the Workplace Relations Act, 2015 sets out that the Regulations are specified for purposes of Part 4 of that Act. Part 4 of that Act deals with the making of complaints to the Workplace Relations Commission and provides that Section 41 of that Act applies to provisions and enactments specified in schedule 5 of that Act for the purposes of Part 4.

Section 41 of the Workplace Relations Act, 2015 makes provision in relevant part as follows:

• (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.
  
  

Conclusion of the Court

The complaint before the Court is that a breach of the Regulations took place in October 2019. No complaint within the meaning of the Act was made in relation to that alleged breach until December 2021.

The statute makes provision for the making of a complaint within six months of the occurrence of an alleged breach or, in any event, depending on circumstances, within a maximum of twelve months of the occurrence of the alleged breach.

This complaint was not made until more than two years after the date of the alleged breach of the Regulations.

In those circumstances the Court must conclude that the within complaint is statute barred.

Decision

The within complaint was made outside of permissible statutory time limits and consequently the within appeal fails.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CO'R	______________________
27 September 2023	Chairman