ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031458
Parties:
| Complainant | Respondent |
Parties | Kenneth O'Keeffe | Louth and Meath Education and Training Board Lmetb |
Representatives | N/A | Maria Gallagher Eversheds Sutherland |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00041493-001 | 09/12/2020 |
Date of Adjudication Hearing: 16/07/2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
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.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings.
At the outset of the hearing the parties’ attention was drawn to the judgment from the Supreme Court in the case of Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 and the key points of the judgment were outlined to the parties. The parties were informed of the procedural changes applicable to the hearing of all complaints in light of the judgment. The parties were invited to present their views in that regard. Both parties indicated that they did not envisage a conflict of evidence arising during the course of the hearing. Both parties expressed a wish to proceed with the hearing.
No serious and direct conflict of evidence emerged in the course of the hearing and consequently there was no requirement for me to adjourn the hearing to await the amendment of the Workplace Relations Act, 2015 and related enactments to grant Adjudication Officers the power to administer an oath or affirmation.
Background:
The Complainant was employed as a Trainer with the Respondent and was paid €3,068 per month. Further to starting a prison sentence on 1 March 2019, he was dismissed from his employment on 18 September 2019 because he frustrated his contract of employment. |
Summary of Complainant’s Case:
Having commenced a prison sentence on 1 March 2019, the Complainant wrote to the Respondent on 26 March 2019 seeking a career break because he believed that following a conversation with his employer, this would be offered to him.
This request was refused by the Respondent on 15 July 2019 however because the Complainant did not meet the criteria.
Further to this refusal, the Respondent wrote to the Complainant on 18 September 2019 stating that as he was unavailable and unable to fulfil his contract, his employment was being terminated
The Complainant appealed this decision on 27 September 2019 but the appeal was not heard. A further letter was received from the Respondent on 10 December 2019 confirming the termination of the Complainant’s employment in the absence of an appeal being made. |
Summary of Respondent’s Case:
The Respondent wrote to the Complainant on 18 September 2019 stating that as he was unavailable and unable to fulfil his contract, his employment was being terminated.
The Respondent stated that no appeal of the decision to dismiss was made by the Complainant and that this was confirmed in a letter of 10 December 2019.
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Findings and Conclusions:
PRELIMINARY POINT The Law Section 8(2) of the Unfair Dismissals Act states the following in respect of time limits: “… 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 reasonable cause and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.…” Findings
While the Complainant acknowledged that he was dismissed by the Respondent on 18 September 2019, he stated that he appealed this decision on 27 September 2019, within the required timeframe. Notwithstanding the fact that he produced a registered receipt to prove that he posted the letter, he claimed the Respondent effectively denied receipt of same, on 10 December 2019, in a letter outlining that because no appeal was received, the termination was being confirmed. The Complainant asserts that as the letter from the Respondent was sent on 10 December 2019, this should be deemed the termination date.
The Respondent denied that an appeal was received from the Complainant but stated that a letter was sent to him on 10 December advising him that, as they had not received an appeal, “the position as stated in our letter to you dated 18th September 2019 stands”; in other words, the letter reaffirmed that the Complainant’s employment had been terminated on 18 September. The Respondent asserted that this letter of 10 December did not change the dismissal date for the purposes of the Unfair Dismissal Acts and that it should be 18 September.
Even if I accept that the termination date was 10 December 2019, as the Complainant asserts, I must examine if his failure to refer to the complaint to the WRC within the required six-month timeframe was due to “reasonable cause”.
In this regard, I note that the legal position in relation to time limits is set out in a number of Labour Court decisions. Specifically, in the case of Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338, the Labour Court stated 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. The length of the delay should be taken into account. A short delay may require only a slight 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.” Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held that: “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.” In Department of Finance v IMPACT. [2005] E.L.R. 6. the Court re-stated that it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test. The reason cited by the Complainant in this case as to why he failed to lodge his complaint within the 6 month timeframe provided for under Section 8 (2) (a) of the Acts is that he was serving a custodial sentence until 3rd March 2020 and thereafter was unable to give clear and coherent instructions to his solicitor because he was suffering from “interalia anxiety, depression and post -traumatic stress disorder” and from the effects of a relationship breakdown.
No medical evidence was opened to me however indicating that the Complainant was incapable of instructing his solicitor due to his mental state in the six-month period between 10 December 2019 and 9 June 2020 and therefore no causal link between the circumstances cited and the delay in submitting the complaint was established.
It is also noteworthy that although the Complainant was capable of filing an appeal within the requisite seven-day timeframe of his 18 September 2019 dismissal, when he was in prison, he was unable either to instruct his solicitor or refer this complaint to the WRC himself within the timeframes stipulated in the Act.
While I have considerable sympathy for the Complainant, given the number of traumatic of events he has endured, I find that he failed to submit his complaint within the timeframes required by the Act. |
Decision:
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 do not have jurisdiction to hear this complaint for the reasons set out above. |
Dated: 10th August 2021
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
Time limits; |