ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014309
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 14/08/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
The complainant was employed as a general operative by the respondent commencing in April 2005. The work could be of a seasonal nature with a period of reduced hours / lay-off in mid-Winter. Because of financial difficulties the working hours of staff were reduced in 2014 and due to health issues, the complainant’s working hours were set at two days per week in Spring 2015. The gross weekly pay was €167.84 for 16 hours. In February 2017 there was a proposed further reduction in hours and in April 2017 the complainant’s employment terminated.
Summary of Complainant’s Case:
The respondent intended to reduce the complainant’s working hours to 9 hours per week with effect from February 2017.
This proposed reduction of hours was unacceptable to the complainant.
The respondent sent a series of letters to the complainant’s home which resulted in unacceptable stress to the complainant.
The complainant contacted the club chairman and requested that the respondent stop sending letters to him. The complainant did not resign.
Summary of Respondent’s Case:
The respondent was facing serious financial difficulties.
The respondent sought to keep all staff employed but had to reduce working hours.
The respondent advised the complainant of the situation and encouraged him to engage with them to facilitate his ongoing employment with them.
The complainant ignored all correspondence and the respondent threatened to take disciplinary action because of the complainant’s ongoing refusal to respond.
The complainant decided not to return to work.
Findings and Conclusions:
This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. A preliminary point that arises is in regard to the date of submission of the complaint.
Section 8(2) of the Act states:
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
(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause.
The date of the submission of the complaint to the WRC is the 25 April 2018. According to the complaint form submitted by the complainant the date that employment ended is April 2017 (no specific date). A P45 form was issued giving the date of cessation of work as 5 May 2017. To deal with this issue it is necessary to examine the background to the complaint.
The complainant was initially employed in 2005 as a general operative maintaining the grounds of the club and working full-time hours. These hours reduced to a 3-day week in winter. In April 2015, when staff were returning to full-time working, the complainant, who was on sick-leave, requested that he be allowed return on the basis of working 2 days per week. The respondent replied agreeing to the request and stating that it would be reviewed in April 2016. The respondent was experiencing financial problems and in August 2016 issued protective notice to staff. In October 2016 the complainant went out again on sick-leave and remained out absent.
In February 2017 the Club Manager wrote to the complainant setting out the difficult financial position that the respondent faced and advising that, as a result, they could only offer him one 9-hour shift per week and asking that he resume on 4 April 2017. No response was received from the complainant and the respondent’s manager wrote again to him in March 2017 explaining that various attempts had been made to contact the complainant and again requesting that that contact be made in order that there might be engagement on his position. On 6 April 2017 the manager wrote another letter advising of the urgent need for the complainant to contact the respondent in order to clarify his intentions and stating that failure to make contact might result in disciplinary action. On 13 April the manager wrote to the effect that as no contact had been made it was intended to hold a disciplinary hearing on 20 April in relation to the complainant’s behaviour. The complainant did not attend that hearing and the manager again sent a letter stating that a further disciplinary hearing was being arranged for 4 May and that failure to attend might result in the complainant’s dismissal.
The complainant phoned the respondent’s chairman on 27 April and complained about the stress being caused by these letters. The complainant in evidence said that the chairman apologised and suggested that the complainant call into the club and discuss the matter. The complainant further stated that no definite arrangement was made in this regard but accepted that he informed the chairman that he would return keys belonging to the club. The chairman, for his part, sent a note of the telephone conversation to the manager in which he stated that the complainant was distressed by the letters, that the chairman had invited him to come and talk to them but that the complainant had refused to do so and said he would return club keys to a named person. It is clear that the respondent formed the understanding that the complainant had resigned and issued a P45 Form with a cessation date of 5 May 2017. The complainant denied that he had resigned and stated that he had not received the P45 Form.
The complainant in evidence said that he had contacted the WRC in October 2017 but had not filled in a complaint form at that time as he was too agitated to do so. A doctor’s certificate date 21 May 2018 was submitted which stated that the complainant “has been in poor health generally over the past 6 months.”
As set out in the Act the 6-month deadline for submission of a complaint can be extended to a maximum of 12 months if the adjudication officer is satisfied that there was a reasonable cause which prevented the complainant from so doing. The question of what constitutes “reasonable cause” has been considered on a number of occasions by the Labour Court and in particular in Cementation Skanska v Carroll (DWT0388). The Court stated:
“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons that 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…..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.
I have considered all the relevant matters in this regard and I am not satisfied that the complainant has demonstrated that there was a reasonable cause for his failure to submit his complaint in time. I accept that the complainant was on sick-leave when these events occurred but there was no evidence that the illness was of such a nature as to prevent him filling in a complaint form. I note, in particular, that he was in contact with the WRC during this time but did not fill in the form. The doctor’s cert is vague and general and does not cover the period in question.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
Complaint No. CA-00018873-001:
I find that the complainant’s explanation for not referring his complaint within the 6-month time period does not satisfy the test of reasonable cause as set out by the Labour Court in Cementation Skanska v Carroll and therefore does not excuse the delay beyondthe time limit.
The complaint therefore fails.
Workplace Relations Commission Adjudication Officer: Joe Donnelly