ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021041
Daniel O'Connell Robert Emmet Bourke & Co., Solicitors
Melanie Crowley Mason Hayes & Curran Solicitors
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: 19/11/2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
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 by the Respondent from 1st June 2001 to 29th June 2018.
Summary of Complainant’s Case:
The Complainant worked in Maintenance and as a Groundsman and his wife worked as a House-keeper for the Respondent from 2001. They lived in a house on the grounds. He is a non-national with very limited English.
Due to a serious tragedy affecting a member of the Complainant’s family in May 2018, the Complainant left Ireland to return to his native country for a number of months following his bereavement. They were forced to return early from returning to their own country to repatriate their deceased relative as their wages ceased after four weeks holiday pay.
The Complainant was dismissed around 6th August 2018 and made homeless while recovering from a tragic bereavement. The Complainant said he would be able to return to work at a meeting on 6th August 2018 but not to one part of the garden.
He was not in a position to make a complaint within the statutory period of six months. He suffered untold psychological distress, insomnia and was prescribed anxiolytic medication from his GP. His first GP was not available. A medical report was provided from his GP who saw him on 19th March 2019. Subsequent to the statutory period of 6 months, the Complainant received legal advice. His English is poor and there were difficulties taking instructions. His complaint was then expedited.
The threshold to be reached is reasonable cause and the Complainant relies on the dicta of Ms. Justice Laffoy in Department of Finance v IMPACT  in considering an extension of time in exceptional circumstances:
“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. His is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. Whilst not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time-limit. These factors would include… the degree of prejudice which may have been suffered by the Respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good case on its merits”.
The Complainant also relies on the Labour Court decision of Cementation Skanska v Carroll DWT38/2003. The cause is linked to the tragic bereavement of the Complainant and also the manner in which the Complainant was required to return to Ireland as he was no longer being paid by the Respondent. The Complainant relies on a letter from his GP that he was not in a state of mind that would allow him to properly meet the injustice committed against him. The dismissal occurred when the Respondent was fully aware of the Complainant’s personal circumstances.
The Complainant first sought legal advice from his solicitor on 7th March 2019 and his complaint form was lodged on 29th March 2019. The culmination of the facts prevented the Complainant from lodging his complaint within 6 months and that reasonable cause has been shown.
Summary of Respondent’s Case:
The Respondent says there was a delay of 3 weeks in submitting the complaint from the time the Complainant received legal advice on 7th March 2019. The Respondent requests clarification of the reason for the delay and evidence of a disability. The medical report says the Complainant is a newly registered patient since 19th March 2019.
The Respondent denies dismissing the Complainant and says there was no dismissal as defined in S1 of the Unfair Dismissals Act 1977-2015, and the Complainant terminated his own employment. Without prejudice to the above, in the alternative the Respondent submits the employment termination was consensual and does not fall within the Unfair Dismissals Acts 1977-2015.
The Complainant was employed as a gardener and maintenance man. It was part of the terms and conditions that the Complainant and his wife resided in a house on the grounds of the Respondent’s residence. The Complainant and his wife suffered a tragic bereavement. On 23rd May 2018 they sought 4 weeks holiday pay, although they had only worked 5 months. This was agreed by the Respondent. On 27th May 2018, the Respondent met the Complainant and his wife and offered €20,000 to cover the costs of repatriation. Other funds were provided to the Complainant and his wife to cover the costs, and this sum was not required.
The Complainant returned to his home country and flights were booked by the Respondent with an open return. The Complainant and his wife were unable to indicate when they would be in a position to return to work and his position remained open. The Respondent learned the Complainant had returned to Ireland in August 2018 and requested a meeting with him on 7th August 2018.
The Complainant met with the Respondent and said they would be unable to return to the residence due to the tragedy. The Respondent suggested renting a house nearby.
The Complainant and his wife indicated they could not see themselves returning to work or living at the residence. The Respondents accepted the decision of the Complainant and his wife, and said they would give them suitable references. The Respondent knew another employer in Kildare looking for a similar couple but the Complainant would require to drive. The Complainant said he did not need money at the meeting and agreed to remove their belongings from the house.
Later that day, the Respondent’s administrator received a number of messages from the Complainant’s wife seeking redundancy, and saying that they were not entitled to social welfare payments, if they resigned.
A member of staff clarified if the Complainant submitted a medical certificate stating that he could not work due to trauma, he would be likely to obtain illness benefit. The Respondent did not say the Complainant was being made redundant. The Respondent says it was the Complainant’s decision to terminate their employment. The roles were not redundant and the intention was always to fill the roles. On 10th August the Complainant removed his belongings from the Respondent’s house. The P45 issued on 7th August 2018.
The Respondents were notified of the claim on 15th March 2019 alleging the Complainant was told his services were no longer required. At all times the Respondent rejected the suggestion the Complainant was unfairly dismissed. The letter invited the Complainant to return to work in another role on terms to be negotiated, with accommodation in the same house in April 2019 which offer was not accepted.
The Complainant has failed to provide details of his financial loss. If the Complainant was in receipt of illness benefit he was not fit to work, and has no actual loss.
Findings and Conclusions:
I have heard and considered carefully the oral and written submissions of the parties.
S41 of the Workplace Relations Act 2015 provides;
(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 contravention to which the complaint relates…..
(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.
The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.
“It is the Courts 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 with 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 length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.
The Complainant is non-national with limited English. The Complainant is medically certified as suffering from grief and psychological distress in the period from May 2018 to March 2019. His employment terminated on 6th August 2018. He did not receive legal advice until 7th March 2019. His complaint of unfair dismissal was received by the Workplace Relations Commission within a number of weeks on 29th March 2019.
Normally, ignorance of the person’s legal rights, as opposed to the facts giving rise to the complaint cannot provide a justifiable excuse for the failure to bring the complaint within time. However, there are special circumstances and as a non-national the Complainant could not reasonably be expected to understand the nature or detail of his statutory entitlements or the process of vindication of these. The decisive criterion is reasonableness as set out in Rezmerita Limited v Wioletta Morkis Labour Court (DWT1017). In all the circumstances, I find there is reasonable cause to extend time in the case.
Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:
(a) the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.
Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.
The Respondent disputes the dismissal, says the Complainant did not wish to return to work or in the alternative, the Complainant’s employment was terminated consensually. The Complainant and his wife had long service with the Respondent. At the time of his dismissal, he was grieving and psychologically affected by a tragic bereavement. A meeting took place between the Complainant, his wife and the Respondent on 6th August 2018 at the request of the Respondent’s wife. The Complainant has limited English notwithstanding his years in Ireland. He understood his employment was terminated at the meeting.
It is surprising there is no correspondence whatsoever from the Respondent to the Complainant regarding termination of his position. This is particularly so, given the Complainant’s limited English, the ending of a long-standing employment relationship, and recent bereavement.
On balance, I prefer the Complainant and his wife’s version of events and these are supported by the text messages. The Complainant was not given any notice of dismissal or reason for dismissal. The Complainant did not provide a written resignation. The Respondent encouraged the Complainant to apply for illness benefit, and proceeded to recruit for the positions immediately, as the situation had been unsatisfactory.
The Respondent has not discharged the burden of proof that the Complainant was dismissed fairly. I find the Complainant was unfairly dismissed. The Complainant was in receipt of illness benefit until 1st April 2019. He has financial loss for 12 weeks and found alternative employment on 24th June 2019.
The Complainant’s financial loss is €471.16 gross per week for 12 weeks totalling €5,653.92. It is just and equitable that the Complainant be awarded €5,653.92 euro in respect of his financial loss and I direct payment of this by the Respondent.
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.
I find the Complainant was unfairly dismissed. It is just and equitable that the Complainant be awarded €5,653.92 euro in respect of his financial loss and I direct payment of this by the Respondent.
Dated: 27th August 2020
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Extension of time, fact of dismissal, burden of proof