ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002634
Creche, Preschool and Afterschool Facility
Alastair Purdy & Co. Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 15 of the European Communities (Organisation of Working Time) (Mobile Staff in Civil Aviation) Regulations 2006 - S.I. No. 507 of 2012
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 28/05/2019
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints and the dispute to me by the Director General, I inquired into the complaints and the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints and the dispute.
The Complainant worked for the Respondent from 6th February 2006 until 21st July 2015.
She submitted a number of claims against the Respondent to the Workplace Relations Commission on 4th April 2016. She alleged as follows:
1. That she did not receive her paid leave / annual leave entitlements as per the European Communities (Organisation of Working Time) (Mobile Staff and Civil Aviation) Regulations, 2006;
2. That she was not notified in writing of a change to her terms of employment (Terms of Employment (Information) Act, 1994);
3. That she had to leave her job due to the conduct of her employer or others at work (Unfair Dismissals Act, 1977);
4. That she had a complaint in relation to disciplinary sanctions up to and including dismissal (Industrial Relations Act, 1969).
At the adjudication hearing, the Complainant confirmed that her complaints under the Unfair Dismissals Act and the Industrial Relations Act relate to the same set of facts. The Complainant elected to proceed with the complaint under the Unfair Dismissals Act and withdrew the complaint under the Industrial Relations Act (CA-00003691-006).
Preliminary matter: time limit
Summary of Respondent’s Case:
The Respondent raised a preliminary point that all four claims are statute barred. The Respondent argues that the Complainant resigned her position on 21st July 2015 and all claims were received by the WRC on 4th April 2016, some 9 months later.
The Respondent notes that the Director General of the WRC has the capacity to extend the time limit should there be a reasonable cause. While the phrase “reasonable” is a lower bar than under the previous legislation for some of the claims, it is still a bar that must be reached by the Complainant.
The Respondent submits that it has long been held by all employment law forums that the following circumstances do not give foundation for extending a time limit: ignorance of the law, lack of awareness of time limit, no knowledge of cause of action at the time.
The Respondent argues that in the Complainant’s own complaint form she herself states that in January 2016 she was “advised that the termination of my employment could be seen as constructive dismissal”. This being the case, it is unclear why did it take the Complainant a further period of three months to lodge her claims.
The Respondent cited Rauf v HSC FTD0817.
Summary of Complainant’s Case:
In respect of the preliminary matter of time limit that Complainant submits that there was no particular reason for the delay. The Complainant confirmed that she visited her accountant in October 2015. The accountant advised her to contact a HR adviser and gave her contact details of one. The Complainant submits that she met with the HR adviser twice in November 2015. She submits that she had the WRC Complaint Form filled out at this stage and he reviewed same.
Findings and Conclusions:
The first matter I must decide is if I have jurisdiction to hear these complaints.
In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.
The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:
“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.”
I note that the Complainant’s employment with the Respondent terminated on 21st July 2015. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted within 6 months of the 21st July 2015.
Accordingly, the initiating complaint referral form must have been submitted by 20th January 2016. The complaints were referred to the WRC on 4th April 2016. I find that the herein complaints have been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act 2015.
Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:
“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.”
The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;
“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.”
Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.
I note that in her WRC Complaint Form, which the Complainant signed and dated on 23rd March 2016 the Complainant states that “In January 2016 I was advised that the termination of my employment could be seen as constructive dismissal. I then sent PP77 (claim for redundancy) to the employer…”
At the adjudication hearing, the Complainant confirmed that she was advised as far back as October and November 2015 by both her accountant and a HR adviser in respect of the submission of her claim to the WRC. The Complainant also stated that in November 2015 she had the Complaint Form completed and consulted with her HR adviser. When asked at the hearing to outline the reasons for the delay she replied: “no reason”.
I find that the Complainant was aware of the WRC complaint submission process and was professionally advised in respect of same.
Having carefully considered all evidence available to me, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for submission of her claims.
Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate these complaints.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Having carefully considered all evidence available to me I find that the Complainant has failed to submit her complaints within the required time limit. Accordingly, I do not have jurisdiction to inquire into the complaints.
Workplace Relations Commission Adjudication Officer: Ewa Sobanska
Time limit – unfair dismissal- terms of employment – annual leave