UDD2337

1. Appeal of Adjudication Officer Decision No(S). ADJ-00033017 CA-00043691-001

BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 23rd January 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place by way of written submission on 11th September 2023. The following is the Decision of the Court:

DETERMINATION:

This matter comes before the Court as an appeal by Jonathan Muldoon (the Appellant) of a decision of an Adjudication Officer in his complaint of unfair dismissal under the Unfair Dismissals Act 1977 (the Act) against the department of Employment Affairs and Social Protection (the Respondent). The Appellant resigned his employment with the Respondent on 11^th September 2020.

The Appellant’s complaint was received by the Workplace Relations Commission on 21^st April 2021. Having regard to the Act at Section 8(2)(a), the six-month time limit within which the complaint under that Act should have been referred to the Workplace Relations Commission expired on 10^th March 2021. The Adjudication Officer decided that the complaint of the Appellant was out of time.

Background and hearing

This matter was scheduled for hearing in a physical Court room by the Court on 4^th July 2023. The Appellant made a number of late notice applications for postponement of the scheduled hearing on dates up to and including the 3^rd July 2023. Each of these applications for postponement was refused by the Court. Ultimately, late on the 3^rd July 2023, the Appellant submitted a medical certificate which stated that the Appellant would be unable to attend the hearing of the Court on the following day. On receipt of this certificate the Court postponed the scheduled hearing.

The Respondent subsequently submitted that the Court should, having regard to the provisions of Section 47(3) of the Workplace Relations Act, 2015 (the Act of 2015), consider deciding the appeal by way of written submissions only. That request was circulated to the Appellant, and he confirmed in writing to the Court that he was agreeable to having the matter decided by way of written submissions only.

The Act of 2015 at Section 47(3) and 47(4) provides as follows:

• 47(3) The Labour Court may, where it considers that an appeal under section 44 may be dealt with by written submissions only, inform the parties to the appeal, by notification in writing, of its intention to deal with the appeal in that manner.

  (4) Where a party to an appeal under section 44 is given a notification under subsection (3) and, not later than 42 days after having been given the notification, he or she informs the Labour Court that he or she objects to the appeal being dealt with in the manner specified in the notification, the Labour Court shall not deal with the appeal in that manner.

Following the request from the Respondent and the confirmation of assent received from the Appellant, the Court decided that it would address the issue of time limits as a preliminary matter. The Court took this decision on the basis that its decision on that matter had the potential to dispose of the appeal in its entirety.

The Court decided that it would decide the preliminary matter on the basis of written submissions only. In the event that the Court decided that the appeal was made to the Workplace Relations Commission in time, it would, at that time, decide whether it would decide the entire appeal on the basis of the written submissions only.

The Court notified both parties, in writing, of its intention to deal with all or part of the appeal by written submissions only. Neither party informed the Labour Court within 42 days of the issuance of that notification of an objection to the appeal being dealt with in the manner specified in the notification.

Summary of the positions of the parties with respect to the preliminary matter

The Appellant submitted that he was of the opinion that a claim of Unfair Dismissal / Constructive Dismissal must be submitted to the Workplace Relations Commission within six months of resignation. He submitted that he missed this date by one month and ten days only. He submitted that he was aware that an extension of twelve months can be granted due to exceptional circumstances and that he would have thought that that the terminal illness of a close relative would be considered as exceptional circumstances for the late submission of his original complaint.

He also submitted that if his complaint was statute barred “why did both the original hearing on 20^th May 2022 and adjourned hearing of 29^th August 2022 take place”. The Court understands that the reference to two hearings must be a reference to hearings of the Workplace Relations Commission.

The Respondent submitted that the Appellant had offered two explanations for his failure to observe the statutory time limits applicable. A statutory time limit is, in the submission of the Respondent, finite and there is no status of being “only” a certain amount of time late. Moreover, to be one month and ten days late submitting a complaint when the time limit is six months, as a matter of fact and law, is not considered to be a short / minimal period for the purposes of extension of time where reasonable cause has been shown.

The Respondent submitted that the Appellant has failed to provide any evidence as to support his assertions as regards the terminal illness of a close relative. The Respondent submitted that following his resignation from his employment with the Respondent in September 2020 he had taken up employment with another employer, had engaged in extensive correspondence with various parties and applied for employment in the civil service. That latter circumstance required the Appellant to make an application, sit an aptitude test and complete an interview all within the time that was statutorily available to make the within complaint. He has, in the submission of the Respondent, failed to demonstrate that the illness of a close relative prevented him from making the within complaint to the Workplace Relations Commission within time.

Discussion and Conclusions

The Act provides at Section 8(2) as follows:

• (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 ) to the Director General—

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

In the within matter no complaint was made to the Workplace Relations Commission within the time period set out in the Act at Section 8(2)(a).

The meaning of “reasonable cause” has previously been the subject of consideration by this Court in Salesforce.com v Alli Leech EDA1615 where it stated:

• “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -
  • ‘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.’
  In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986,. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

  The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) 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.
  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 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. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

In all of the circumstances, the Court concludes that the Appellant has made no submission which would allow the Court to decide that he was prevented at all in making his complaint to the Workplace Relations Commission in time. In reaching this conclusion the Court notes the straightforward means available to the Complainant to make his complaint and, on the basis that he did ultimately make a complaint to the Workplace Relations Commission, the apparent capacity of the Appellant to utilise those facilities at any time. He has not shown reasonable cause for his failure to make the within complaint within the statutory time limits applicable.

Determination

On the basis of the foregoing, the Court decides that the Appellant has not established the existence of reasonable cause justifying his delay of one month and ten days in referring his complaint to the Workplace Relations Commission.

The decision of the Adjudication Officer is affirmed and the appeal fails.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
13th September 2023	Chairman