ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001316
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 |
CA-00000621-001 |
03/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00000621-002 |
03/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00000621-003 |
03/11/2015 |
Venue: Tom Johnson House, Haddington Rd, Dublin 4.
Date of Adjudication Hearing: 18/04/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 8 of the Unfair Dismissals Act, 1977 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background
The Complainant was employed as Assistant House Manager from 1st January 2010 to 20th March 2015. She was paid €1,700 gross per month. She has claimed that she was constructively dismissed and has sought compensation.
The claims CA-00000621-002 Payment of Wages Act and CA-00000621-003 Organisation of Working Time Act were withdrawn.
Preliminary Point Time Limit
The alleged contravention took place on 20th March 2015. This complaint was presented to the Commission on 3rd November 2015, which is some 6 weeks outside the time limit provided for in this Act. The Complainant has sought an extension of the time limit in order to allow the complaint to be heard.
Complainant
The Complainant’s representative stated that an aggravated burglary took place at her place of work where she was physically threatened with a knife. This caused an acute psychiatric trauma and she was incapacitated from that date. She resigned her position on 20th March 2015. She attended counselling three weeks after the incident from 10th February until 1st June 2015. She was advised that further sessions may be required. She didn’t want to make this claim but speaking with her family she decided to do so and submitted a complaint on 3rd November 2015. She made 17 job applications and completed an online training course from June onwards. She commenced going to the gym in May.
She experienced a most serious trauma. She was incapacitated for many months, which prevented her making this complaint earlier. In view of the seriousness of the incident the extension to the time limit should be granted to allow her complaint to be dealt with.
Respondent
The Respondent’s representative stated that the main test is as set out by Justice Lefoy “explain and justify the delay”. The medical evidence does not explain the delay. It is noted that she was attending a gym from May 2015. She made a large number of job applications. She undertook an online course. These are not the actions of a person incapable of submitting a complaint.
The evidence does not justify the delay. The time limit should not be extended and so this complaint is out of time.
Decision on the time limit
I note that the grounds to extend the time limit must reach the benchmark of “reasonable grounds”.
The Labour Court in the Cementation Skanska V Carroll DWT00338 (WTC0333) stated, “ in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…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 the circumstances known to the complainant at the material time”
Also in the Employment Appeals Tribunal case Byrne v P.J. Quigley Ltd [1995] ELR 205 stated, “in order to extend the time it seems to follow that the circumstances involved must arise within the first six months”.
In this case the alleged contravention took place on 20th March 2015 when she resigned her position. Therefore she had 6 months from that date upon which to submit her complaint that is until 19th September 2015.
I find that the reasonable cause has to have occurred in that first six months which prevented her submitting that complaint.
I accept from the evidence presented at the hearing that she experienced a serious psychiatric trauma.
I note that she undertook counselling sessions up to 1st June 2015.
I note that she decided to get into the workplace again and made 17 job applications from that time.
I note that she also undertook an online training course.
I note that she didn’t want to make a complaint against her former employer but decided to do so having discussed it with her family.
I find that making a complaint to the Commission is done on line and does not require any direct meetings with the former employer and so any possible trauma or degree of uncomfortableness is avoided.
Yet despite being able to undertake an online training course she did not complete and present an online complaint to the Commission.
I find that the Complainant has not established reasonable cause to extend the time limit. |
|
Decision:
Section 41(4) of the Workplace Relations Act 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the above stated reasons I have decided that the complaint was presented to the Commission outside the 6 months time limit allowed.
Therefore I have decided that I do not have jurisdiction to hear this complaint and that it fails.
Dated: 14th July 2016