ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017567
Head of Security
Facilities Management Company
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: 03/01/2019 and 05/02/2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing 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 from 24th April 2003 until the employment was terminated on 15th February 2018 with six weeks paid in lieu of notice. Therefore the effective date of dismissal is 28th March 2018. The Complainant was paid €2745 gross per month and he worked 43 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 19th October 2018 alleging he had been unfairly dismissed.
Preliminary Issue – Time Limits
A preliminary issue was raised by the Adjudication Officer at the Hearing on 3rd January 2019 in relation to Time Limits. The Hearing was adjourned with the Agreement of both Parties to allow the Complainant’s legal representative to make a submission to the Adjudication Officer in relation to Section 8(2)(b) of the Unfair Dismissals Act in relation to an extension of time. The Solicitor for the Complainant was afforded two weeks to make the submission with the Respondent being afforded one week to respond. Both Parties agreed to copy their submission. A Further Hearing was scheduled for 11am on 5th February 2019 – again with the agreement of both Parties.
The Adjudication Officer received the Submission on Time Limits by letter dated 25th January 2019. However this submission addressed Section 41(8) of the Workplace Relations Act, 2015 which is not applicable to a complaint of unfair dismissal under the Unfair Dismissals Act, 1977. The Solicitor set out the requirement under Section 41(8) which states that an Adjudication Officer can entertain a complaint after the expiration of the period of 6 months ….if the failure to present the complaint or refer the dispute was due to reasonable cause.
The Solicitor for the Complainant argued that the effects on the Complainant of losing his job were serious and had a detrimental effect on his mental health – he was only persuaded to fight for his rights when he was persuaded by a solicitor friend to do so (I note that the Complainant was represented by a named Solicitor at the Disciplinary Hearing on 9th February 2018). In addition the Complainant’s GP had provided a letter dated 1st January 2019 confirming his attendance on 15th August 2018. (The Hearing was not provided with this GP Letter) A letter dated 5th February 2019 was received by the Adjudication Officer on 8th February 2019.
The Complainant and his Solicitor accepted at the Hearing that they had quoted the wrong Act in relation to the extension of time but argued that the Adjudication Officer should consider the same arguments in relation to an extension of time under Section 8(2)(b) of the Unfair Dismissals Act, 1977.
The Respondent replied with their response on 29th January 2019. They argued that Section 41 of the Act of 2015 had no application to the current complaint. The Respondent referenced a number of previous decisions in relation to an extension of time.
The Hearing resumed on 5th February 2019. Both Parties were afforded an opportunity to advance their arguments in relation to the Complainant’s request for an extension of time under Section 8(2)(b) of the Unfair Dismissals Act, 1977.
DECISION ON PRELIMINARY ISSUE – section 8(2)(B) OF THE Act.
Section 8 of the Act provides as follows – 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 a reasonable cause.
The Complainant’s employment was terminated on 15th February 2018 following an investigation and a disciplinary process where the Complainant was represented by his named Solicitor. The Complaint to the WRC was lodged on 19th October 2018. Therefore in accordance with Section 8 of the Act the complaint has been submitted outside the 6 month time limit as provided for in Section 8(2)(a) of the Act. The Adjudication Officer therefore considered the application by the Complainant at the Hearing for an extension of time under Section 8(2)(b) of the Act. The Solicitor argued that there was a stay on the dismissal of 15th February 2018 to allow the appeal and they further argued that the appeals process operated to diminish the Complainant’s opportunity for referring a complaint to the WRC. Date of Dismissal is set out at Section 1(1) of the Act as follows – Date of dismissal means – (a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Acts 1973 to 2005, the date on which that notice expires. The employment was terminated with six weeks pay in lieu of notice on 15th February 2018. Therefore the effective date of dismissal was 28th March 2018. The Complaint was lodged on 13th November 2018.
I note the Complainant was legally represented at the Disciplinary Hearing by a named Solicitor, being a different Solicitor to his legal representative at the Hearings on 3rd January 2019 and again on 5th February 2019. I also note that the only medical record from the GP was that submitted after the second Hearing on 5th February 2019.
The issue and power by an Adjudication Officer to extend time for reasonable cause was fully considered by the Labour Court in its decision in Cementation Skanska v Carroll DWT 38/2003. The Court held that it was for the Complainant to show that there were reasons which both explain the delay and afford an excuse for the delay.
On the basis of the evidence at both Hearings and questioning by the Adjudication Officer I decide that the Complainant has not shown reasonable cause for the delay nor has he provided any evidence that he was prevented from lodging his complaint within the six month time limit.
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.
On the basis of the evidence, my findings above and in accordance with Section 8(1)(c) of the Act I declare I do not have jurisdiction to hear this complaint as the complaint which was lodged on 13th November 2018 does not comply with Section 8(2)(a) of the Act and the Complainant has failed to show reasonable cause for the delay as required by Section 8(2)(b) of the Act.
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Unfair Dismissal – Sections 8(2)(a) and (b) considered – no jurisdiction as complaint lodged outside the time limits and the Complainant failed to show reasonable cause for the delay.