FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : IARNR�D ÉIREANN / IRISH RAIL (REPRESENTED BY PETER WARD S.C., INSTRUCTED BY THE CIE SOLICITOR'S OFFICE) - AND - STEPHEN LYNCH (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no ADJ-00006139.
BACKGROUND:
2. The Respondent appealed the Decision of the Adjudication Officer to the Labour Court on 26 January 2018 in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 8 May 2018. The following is the Determination of the Court:-
DETERMINATION:
Background to the Appeal
This is an appeal on behalf of Iarnrod Eireann (‘the Respondent’) of an Adjudication Officer’s decision (ADJ-00006139, dated 17 January 2018) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that Stephen Lynch’s (‘the Complainant’) claim of unfair dismissal contrary to the Act was well-founded and directed that he be re-engaged by the Respondent within forty-two days of the date of his decision and that a final written warning should be placed on his personnel file.
The Respondent’s Notice of Appeal was received by the Court on 26 January 2018. The Court heard the appeal in Dublin on 8 May 2018.
Preliminary Issue
The Respondent – at the outset of the hearing before the Adjudication Officer – had raised the issue of whether the Complainant’s claim of unfair dismissal was time-barred. The Complainant’s dismissal occurred on 9 March 2016. As it transpired, the Workplace Relations Commission did not receive a completed Complaint Form on behalf of the Complainant until 10 November 2016, some eight months after the date of dismissal. The Complainant successfully applied before the Adjudication Officer for an extension of time within which to refer his complaint. The Adjudication Officer found that the Complainant had demonstrated that reasonable cause had prevented him from presenting his claim within the statutory time-limit of six months from the date of dismissal. He expressly found that the complaint would have been presented in time had it not been for the “error or omission made by the Complainant’s representatives” but that the delay was not due to any deliberate decision on the part of those representatives to delay instituting proceedings.
The Respondent raised the above preliminary issue again at the commencement of the appeal before the Court for reconsideration on ade novobasis. It is appropriate, therefore, at this point to set out in some detail the parties’ submissions on this issue. The Complainant submits that he consulted a Solicitor shortly after his dismissal on 9 March 2016 and that the Solicitor completed a Complaint Form on his behalf and gave him a copy of that completed Complaint Form. He took it to be the case that the Solicitor had in fact submitted the Form on his behalf to the Workplace Relations Commission. On 5 May 2016 – sometime after his consultation with the Solicitor – the Complainant met with a SIPTU Official to discuss his dismissal. Towards the end of that meeting he produced a copy of the completed Complaint Form that had been prepared earlier by the Solicitor he had initially consulted. The Official similarly assumed that the document was a copy of Form that had actually been submitted by the Solicitor on behalf of the Complainant. The Official – as is normal practice – advised the Complainant that he would have to make a choice between being legally represented and being represented by the Union. The Complainant took some weeks to make a decision in that regard but eventually opted for Union representation and advised the Union Official accordingly in late May 2016 of that. Some months passed before there were any further developments as it was agreed between the Complainant and the Official that they would meet in order to prepare for the hearing once the Complainant had been notified of a hearing date by the Workplace Relations Commission. The Union carried out an audit of outstanding cases in November 2016 in the course of which it was noted that the Complainant had not received any notice of a hearing date. The Official contacted the Workplace Relations Commission on 10 November 2016 and learned that no Complaint Form had been submitted on the Complainant’s behalf. He, therefore, submitted a Form on that same date.
Having regard to the foregoing sequence of events, the Union submits that the Complainant has shown reasonable cause to justify the Court granting an extension to the six-month limitation period in this case. They further submit that the delay was caused entirely by the Complainant’s reasonable belief that his Solicitor had lodged a completed Complaint Form with the Workplace Relations Commission following the Complainant’s consultation with him. That being the case, there was no need to file a second Complaint Form. The Union also submits that the fact that the Complainant consulted both a Solicitor and a Union Official is evidence of his keenness to pursue a complaint under the Act. This, they say, is also borne out by the speed with which a Complaint Form was submitted on 10 November 2016, the very day that the Complainant learned for the first time that his Solicitor had not, in fact, referred a complaint on his behalf. Finally, in support of the submission for an extension of time on the basis of reasonable cause for the delay having been shown, the Union requested the Court to have regard to its previous Determination inCementation Skanska (Formerly Kvaerner Cementation Limited) v CarrollDWT0338.
The Respondent submits that the within case is one where there was a clear failure on the part of both the Complainant’s Solicitor and of his Union Official to ensure the claim was referred prior to the six-month deadline for doing so and/or to ensure that it had been lodged within that period. It further submits that such an explanation for late filing of a complaint does not constitute reasonable cause that can both explain and offer an excuse for the delay. The Respondent in this regard relies on this Court’s consideration of the test for reasonable cause inCementation Skanska (Formerly Kvaerner Cementation Limited) v CarrollDWT0338. Mr Peter Ward SC also directed the Court to the following passage from paragraph 25.1 ofRedmond on Dismissal Law(3rdEd., 2018): “The case law consistently reveals that inadvertence on the part of a firm of Solicitors will not be accepted as excusing a delay.”
Discussion and Decision
Section 41(6) to (8) of the Workplace Relations Act provide 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.
(7) …
(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 Complainant gave sworn evidence to the Court. At no stage did he say, in the course of that evidence, that he had formally instructed the Solicitor to proceed and refer a refer a complaint on his behalf to the Workplace Relations Commission utilising the Workplace Relations Complaint Form as completed by the Solicitor, a copy of which completed Form the Solicitor had given to the Complainant. Neither did the Complainant tell the Court that the Solicitor had confirmed to him that he had so acted on such instructions from the Complainant. The Court is well aware from its own knowledge that a prudent representative – legally qualified or otherwise – would not proceed to refer a statutory complaint on behalf of a client without first getting the client’s express instructions to do so and the client’s express approval of the completed draft referral document/form. Having regard to the foregoing, the Court must answer the question it posed itself in the previous paragraph in the negative: no evidence has been presented to the Court to permit it to find that the Complainant’s belief that his Solicitor had referred a complaint on his behalf to the Workplace Relations Commission was a reasonably held belief in all the circumstances. The Court, therefore, finds that the Complainant’s explanation for not referring his complaint until some eight months after the date of his dismissal does not satisfy the test of reasonable cause as it has been interpreted and applied by this Court following its determination inCementation Skanska (Formerly Kvaerner Cementation Limited) v CarrollDWT0338 and therefore does not excuse that delay beyond the six-month time limit.
The decision of the Adjudication Officer is, therefore, set aside.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
15 May, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.