ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027107
Parties:
| Complainant | Respondent |
Anonymised Parties | Retail Supervisor | Retail, Deli and Café Business |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00034560-001 | 11/02/2020 |
Date of Adjudication Hearing: 01/12/2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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 hearing was conducted remotely. The Respondent did not log in to the hearing. I was satisfied that log-in details of the hearing were sent to the address of the Respondent which the Complainant identified as the correct address for the Respondent. A reasonable time was allowed at the commencement of the hearing to allow for the Respondent to login. The Respondent did not partake in the hearing. The Complainant represented herself.
Background:
The Complainant worked as a retail supervisor for the Respondent business from 23rd May 2015 until the closure of the business on 6th August 2019. She earned €400 gross per week; net €330.00. She worked 36 hours per week. The Complainant asserts that she did not receive her statutory minimum notice upon cessation of her employment. |
Summary of Complainant’s Case:
The Complainant gave evidence of the sudden closure of her place of employment, without notice, on the 6th of August 2019. She subsequently received a general letter from the Respondent a few days later, which was headed “Dear Employee”. This letter announced the immediate cessation of trading by the Respondent company. The Complainant submits that she received her statutory redundancy entitlement. The Complainant acknowledged that her complaint was received at the Workplace Relations Commission 6 days outside of the statutory 6-month period for a lodgement of claim under the Minimum Notice and Terms of Employment Act 1973, as amended. The Complainant gave evidence that she was not aware of the required time limit for submission of a claim. The Complainant submits that she relied instead upon advice from a community information organisation who advised her that she should not lodge a claim for minimum notice until after receipt of her statutory redundancy sum. She also asserts that her employer should have informed her of the regulations regarding time limits. She is requesting a further time extension based on being misinformed and/or of not being informed of time limits. |
Summary of Respondent’s Case:
The Respondent did not login to the hearing. |
Findings and Conclusions:
In deciding the Complainant’s case, I must first establish as to whether there is merit in the complainant’s application to extend the time limit for submission of her claim. Section 41 (1) of the Workplace Relations Act, 2015 provides: (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee's employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer. The Minimum Notice and Terms of Employment Act 1973 is inserted at Part 1 of Schedule 5 and therefore comes under section 41 of the Workplace Relations Act. Subsections (6) and (8) further provide the regulation on time limits for submission of claims and whether a time limit can be extended for a further six months: (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 the 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 applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of 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.” On the issue of a complainant pleading that she did not know what the time limits were, I refer to the Labour Court Determination in Globe Technical Services Limited v Kristin Miller UD1824. In that case the complainant argued her lack of knowledge on time limits for submitting a claim was based on the fact she was not a resident in this jurisdiction and was therefore unfamiliar with the processes. The Court stated: “It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.” In this instant case the Complainant pleaded lack of knowledge of time limits and submitted that she relied upon the advice of others for direction. Unfortunately, the information she relied upon was erroneous. I have sympathy for the Complainant, but unfortunately erroneous advice is plainly an assertion that falls within the position of lack of knowledge. The circumstances leading to the lack of knowledge -unfamiliarity with the law, as in Globe Technical Services because the complainant was not a resident of the country, or being misinformed as in this instance, cannot be considered as underlying facts that caused the delay. Having considered the evidence put forward by the Complainant in applying for an extension of time, I conclude that the reason put forward does not offer an excuse for the delay. I find that the Complainant has not established that there was reasonable cause justifying her delay in referring her complaint to the Workplace Relations Commission, therefore her complaint fails for being out of time. |
Decision:
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.
I find that the Complainant has not established that there was reasonable cause justifying her delay in referring her complaint to the Workplace Relations Commission, therefore her complaint fails for being out of time. |
Dated: 9th December 2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Minimum Notice, Time Limits. |