FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : UNIVERSITY COLLEGE DUBLIN - AND - DR. AIDEEN HARTNEY (REPRESENTED BY SHEEHAN & COMPANY, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision r-126679-ft-12/MMG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 12th February, 2013. A Labour Court hearing took place on the 29th May, 2013. The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal by Dr Aideen Hartney against the Decision of a Rights Commissioner in a claim against University College Dublin under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) which found that her claim was out of time and therefore he had no jurisdiction to hear the claim.
The Complainant referred a claim to the Rights Commissioner on 3rdOctober 2012 claiming that University College Dublin contravened Section 6 of the Act as she was treated less favourably than a comparable permanent employee when she was not paid an ex-gratia redundancy payment.
In this Determination the parties are referred to as they were at first instance. Hence Dr Aideen Hartney will be referred to as “the Complainant” and University College Dublin will be referred to as “the Respondent”.
Background
DrHartney was employed with the Respondent as a Project Manager with UCD Research on a number of fixed-term contracts from the 26thNovember 2007 until the 30th September 2011.
On 30thSeptember 2011 the Appellant was made redundant and a statutory redundancy payment was paid on the 7thOctober 2011. The Complainantrecommenced employment with the Respondent on a four-year fixed-term contract commencing on the 1st November 2011 as a General Manager with the UCD School of GeologicalScience.
The Complainant referred a complaint to the Rights Commissioner Service of the Labour Relations Commission on the 3rd October 2012 which was received by the Labour Relations Commission on the 6th October 2012.
Preliminary Issue – Time Limit
Summary of the Complainant’s case
Mr Conor Cahill, Sheehan & Company, Solicitors, on behalf of the Complainant, submitted that the Rights Commissioner erred in finding that he had no jurisdiction to hear the complaint as it was presented out of time. Mr Cahill made an application to the Court under Section 14(4) of the Act to be permitted to extend the time for bringing a claim under the Act. He submitted that there were circumstances in this case that explained this delay and afforded an excuse for this delay.
It was agreed with the parties that the Court would deal with this matter as a preliminary issue.
In support of his application Mr Cahill referred to the decision of the High Court inUniversity College Cork V Naomi Bushin2012 IEHC 76 which held,inter alia,that fixed-term workers in the third level education sector were entitled to similar ex-gratia redundancy payments as permanent employees within the sector. The import of Mr Cahill’s submissions on the preliminary point was that following theBushindecision the Complainant contacted the Respondent’s Human Resources Department to request an ex-gratia redundancy payment in addition to the statutory redundancy payment already paid. He said that between 20thFebruary 2012 and 5thSeptember 2012 the Complainant engaged in protracted correspondence via email with various personnel in the Respondent’s Human Resources Department seeking clarity and information on its position in this matter but did not receive any definitive response until 28thAugust 2012 when the Respondent rejected her claim for an ex-gratia redundancy payment. Therefore, Mr Cahill submitted that the Respondent delayed giving a definitive response in the hope that the Complainant would not submit a claim under the Act within the requisite six-month time limit.
As a result of the Respondent’s failure to satisfactorily deal with the claim for an ex-gratia redundancy payment in line with theBushindecision, the Complainant at that point decided to lodge a complaint under the Act to the Rights Commissioner. The complaint was received by the Rights Commissioner on 6thOctober 2012.
Mr Cahill said that the Complainant attended the Rights Commissioner hearing on her own and without the benefit of either legal advice or legal representation. Heaccepted thatignorance of the lawis not an excuse, however, he submitted that the Complainant was a"lay litigant"without the benefit of either legal adviceand/or representation when her case was before the Rights Commissioner.
In support of his argument for an extension of timeMr CahillcitedLabour Court
DecisionCementation SkanskavTom Carroll (Determination no.DWT0338)wherein an extension of the timelimit to bring a case was grantedand where theCourt held:-
- "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 theexpression reasonable course appears in the statute it suggestsan 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 in to 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".
Mr Cahill said that as the Respondent in its emails to the Complainant assured her that the matter was being examined and it would respond, he submitted that it was reasonable for the Complainant to await the outcome of that process and to resolve the matter amicably before submitting her complaint under the Act to the Rights Commissioner.
Mr Cahill submitted that the Respondent has not suffered prejudice as a result of the delay as it was fully aware of the Complainant’s efforts toseek equaltreatment on the same grounds as were heldin theBushincasesince the Complainant’s letter and email of 21stFebruary 2012.
Summary of the Respondent’s position
On the preliminary issue, Mr Gavan Stanley, HR Manager UCD, on behalf of the Respondent, accepted the Decision of the Rights Commissioner and said that it remains the position of the Respondent that the claim was presented out of time. Mr Stanley denied that the Respondent had deliberately avoided giving the Complainant a response to her query in order to delay matter so that her claim would be out of time. He said that theBushincase has caused a lot of confusion among the third level education sector and consequently it was not in a position to give an immediate reply.
Conclusion of the Court
This Court has consistently held that the test for extending time for reasonable cause shown should be analogous to that enunciated by Costello J (as he then was) inO’Donnell v Dun Laoghaire Corporation[1991] I.L.R.M 30 for extending time pursuant to O.84 r.21 of the Rules of the Superior Courts 1986. This was initially outlined in theCementation Skanskacase as quoted by Mr Cahill above.
The factors relied upon in this case are that the Complainant made every attempt to seek her statutory rights after the judgment of theBushincase was issued and by the time she got a response from the Respondent the six-months’ time limit had expired. Furthermore, she relies on the fact that she was not legally represented and accordingly was not aware of the statutory time limits under the Act.
It is clear to the Court that no attempt was made to refer a complaint under the Act until October 2012 which was over twelve-months after her employment ceased. The judgement of theBushincase was issued on 17thFebruary 2012 when some six weeks remained at that stage before the expiry of the six-month time limit under Section 14(3) of the Act. The Court notes that the Complainant did not mention to the Respondent the possibility of referring a complaint until her email to the Human Resource Department on 26thJuly 2012. This was still outside the six-month time limit under Section 14 (3) of the Act.
The Complainant accepted that there was no impediment to her seeking either legal advice or advice from a trade union. She chose not to do so at that stage.
It was accepted by the Complainant that the reason for the delay was caused by a lack of knowledge of the statutory time limits.
Except in the case of a person under a disability, ignorance of one’s legal entitlements, as opposed to ignorance of the facts giving rise to those rights, does not excuse a failure to present a claim in time. This was firmly established by the High Court inMinister for Finance v Civil and Public Services Union & Ors[2007] 18 E.L.R. 36 (per Laffoy J.)
In the instant case the Complainant submitted that she was awaiting the outcome of a legal precedent to clarify her legal entitlements before pursuing her complaint.This point was also addressed J.in Minister for Finance v Civil and Public Services Union & Orswhere Laffoy J. held:-
- “In Section19(5) theOireachtashasprescribed a relatively short limitation period, albeitone whichcan beextendedwhere a claimantestablishes"reasonablecause". The expression"reasonable cause", inmy view, broadlyspeaking connotes similarfactors and,in particular,similar conduct on the part of the claimant,asisconnoted by theexpression "good cause"in O. 84, r.21.In relation to thecoreissuewhich arises in the instantcase,it seems to methat, given thejurisprudential backdropin relation to prescribing time-limitsgenerally, whichIhave outlined,it cannot have beentheintentionof theOireachtas that failure to pursue a claimwhichhascrystallised untila legalprecedentisinplace which clarifies thelawand indicates that the claimis likely tobe successful, followed by prosecution of the claimwhentheprecedent is publicised, should constitute"reasonablecause" within the meaning ofSection19(5).Inshort, whilethe delay on thepart ofthe claimants inreferring their claims to the Labour Court has been explained, in my view, a justifiableexcuse for thedelay hasnot been established”
This Court is bound by that decision.
It is clear from all the authorities that on the facts of this case the time limit prescribed by Section 14(3) of the Act for the bringing of a complaint commenced on 30thSeptember 2011 and that commencement could not be halted or delayed by the Complainant’s lack of knowledge or awareness concerning her rights or the absence of a legal precedent at that stage. The within complaint was lodged on 6thOctober 2012 which was outside that time limit.
Based on the information before the Court, the Court is not satisfied that the Complainant has shown reasonable cause in accordance with Section 14(4) of the Act for allowing an extension of time up to twelve months beyond the period stipulated in Section 14(3). Accordingly, the Court rejects the application made under Section 14(4) of the Act and finds that the complaint made was out of time.
In these circumstances it is unnecessary for the Court to deal with the substantive claim under Section 6 of the Act.
Determination
The Complainant’s application and appeal are disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th June, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.