ADJUDICATION OFFICER DECISION
Complaint Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Preliminary Issue: Time Limits
Summary of Respondent’s Case:
The Respondent submits as follows:
The Workplace Relations Act 2015 section 41 (6) states;
“…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.
It is a matter of fact that the Complainant retired from employment with the Respondent on 3rd October 2018, with this claim being submitted seven months later on 20th May 2019. It is clear that the complaint was submitted outside of the 6-month period referenced in the Act and as such “an adjudication officer shall not entertain a dispute”.
The Workplace Relations Act 2015 section 41 (8) does provide “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 no 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 a matter of fact that the Complainant has submitted three complaints under this Act on three dates. The first complaint was submitted on 18th January 2019 (ADJ-00019225) and it is clear from that complaint form that the Complainant was in receipt of legal advice at that time. The Respondent would assert that the two subsequent complaints (ADJ-00021610 submitted on 20th May 2019 and ADJ-00022586 submitted on 8th July 2019) were “submitted outside of the 6-month period” and while they were presented “no later than 6 months after such expiration” the Complainant was in receipt of legal advice and had no reasonable cause not to submit both complaints outside of that initial 6 month period, having already submitted a complaint within the period.
The Complainant retired on 3rd October 2018, therefore both complaints submitted after 2nd April 2019 are out of time and the adjudicator “shall not entertain” those complaints.
For the reasons as set out above the Respondent would ask the Adjudicator to dismiss the two complaints submitted after 2nd April 2019 (ADJ-00021610 and ADJ-00022586) under the Organisation of Working Time Act.
Summary of Complainant’s Case:
The Complainant submits that the herein complaint is grounded on the judgement of the Court of Justice of European Union (CJEU) in the Case Villle de Nivelles v Rudy Matzak (C-518/15) and that he was only aware at a late stage of the full implications of that judgement for his personal situation.
Findings and Conclusions:
The first matter I must decide is if I have jurisdiction to hear this complaint.
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 ended on 3rd October 2018. Therefore, under Section 41(6) of the Workplace Relations Act 2015, the initiating complaint referral form must be submitted to the WRC by 2nd April 2019. In the herein case, the initiating complaint referral forms were received by the WRC between the 10th May and 20th May 2109.
I find, therefore, that the herein complaint has been lodged outside the time limits 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.”
In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay.
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.”
I note the Complainant’s assertion that the delay in submitting the herein complaint to the WRC was due to his lack of awareness of the full implications of Matzak for his personal situation.
I note that the Complainant has submitted three separate complaints to the WRC in relation to his employment with the Respondent, one of which – ADJ-00019225 – was submitted within the six month time limit. I also note that the Complainant had legal representation when he submitted that complaint. Even if the Complainant himself was not fully aware of the implications of Matzak, it is reasonable to expect that his legal representative would have been in a position to advise him appropriately in a timely manner given that the Matzak judgement was issued by the CJEU on 21st February 2018.
Accordingly, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a complaint under the Workplace Relations Act, 2015.
Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 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 his complaint within the required time limit.
I find that I do not have the jurisdiction to hear this case.
Dated: December 17th 2019
Workplace Relations Commission Adjudication Officer:
Time limits – no jurisdiction