ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027335
Parties:
| Complainant | Respondent |
Anonymised Parties | Scaffolder | Scaffolding Company |
Representatives | Charles C Daly & Co Solicitors | David Gaffney Gaffney Solicitors |
Complaint:
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-00034991-001 | 03/03/2020 |
Date of Adjudication Hearing: 01/02/2021
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 held remotely. At the outset of proceedings, and upon examination of the date of dismissal in the complaint form, the Complainant’s representative accepted that there was a discrepancy between the date of dismissal on the complaint form and that submitted in the Complainant’s written submission. Both parties agreed that the date of dismissal was 2 September 2019, and not 3 September 2019 as submitted on the original complaint form. The date of receipt of the complaint form by the Workplace Relations Commission was 3 March 2020. The Complainant accepted, both in the written submission and in testimony at the hearing that the complaint was submitted one day outside the 6-month time limit required for submission of claims under section 8 (2)(a) of the Unfair Dismissals Act 1977 (the Act). As an Adjudication Officer I may extend the time to submit a claim by up to six months, pursuant to section 8(2)(b) of the Act, if the complainant can show that his failure to submit the claim within the first six-month period was due to reasonable cause. I invited oral submissions from both parties on this point.
Summary of Complainant’s Case – Preliminary Time Limits Issue:
The Complainant submits that the reason he did not make the application for this case to be heard within the 6 months was due to traumatic events in his personal life in 2018. His girlfriend lost their baby as a still born when she was over 7 months pregnant. The Complainant submits that this caused great stress and hardship for the Claimant and his family at the time. His main concern when he was dismissed from his employment was being able to provide for his family, albeit at a drastically reduced wage. The Complainant further submits that he would not be well versed in his rights and he was otherwise incapable or incompetent, due to the traumatic event, of submitting the claim on time.
Summary of Respondent’s Case – Preliminary Time Limits Issue:
The Respondent sympathises greatly with the Complainant on the traumatic event in his personal life but submits that the event in question happened quite some time previously and argues that sad and all as the event maybe, it cannot justifiably explain the reason why the complaint was out of time by one day. The Respondent submits further that ignorance of one rights cannot be used to sustain an argument for reasonable cause.
Background:
The Complainant worked as a scaffolder for the Respondent from 8 January 2018 to the date of his dismissal on 2 September 2019. The Complainant averaged €700 per week gross on a full-time basis. The Complainant submits that he was summarily dismissed by the Respondent without reason nor without proper procedures being afforded to him. The Respondent accepts the fact of summary dismissal without the use of proper procedures but wishes to base its case on a claim of contribution by the Complainant to his dismissal and he also submits that there was a subsequent unsatisfactory response by the Complainant to mitigate his loss. |
Summary of Respondent’s Case:
The Respondent accepts that the manner of dismissal was unfair, without prejudice to its position on the argument that the complaint was out of time. The Respondent is arguing the substantive issue on the basis that any compensatory sum awarded should be reduced by the contribution to the dismissal by the Complainant. The Respondent further submits that there was inadequate mitigation of loss by the Complainant. The Respondent submits that prior to the dismissal the Complainant had taken upon himself to claim overtime for early morning loading of scaffolding equipment on his truck. He was told to desist from this practice and the Respondent asserts that this led to a certain amount of friction and a change of attitude by the Respondent. On the day of the dismissal the Respondent requested the Complainant to attend for a job on the next day which would have necessitated a start time of 6am, approximately two hours before his normal start time. The Respondent submits that the Complainant refused to work the requested overtime and in the ensuing verbal altercation with the owner of the business, the Complainant was summarily dismissed. The Respondent submits that this refusal of a reasonable request was a contributory factor to his dismissal. The Respondent submits that the Complainant did not satisfactorily mitigate his loss. The Respondent argues that when the Complainant took up employment as a general operative on a 20-hour week contract for a wage of €250, it indicated a certain reluctance to find a wholetime and financially rewarding position. The Respondent submits that the Adjudication Officer should also disregard the Covid lockdown period between 27 March 2020 and 22 May 2020 when assessing compensation. |
Summary of Complainant’s Case:
The Complainant rejects the argument that he in any way contributed to his dismissal. The Complainant submits that his hours of work were 8 a.m. to 4.30 p.m. Monday to Thursday and 8 a.m. to 3.30 p.m. on a Friday. Any additional hours worked were considered overtime. The Complainant submits he had, however, usually started work at 6.30 a.m. to load his truck and be at the designated job on time. As per his Contract, any over time worked from midnight to normal starting time was paid at double time. The Complainant submits he did not ever receive his overtime pay and when he queried this with the Respondent, he was informed that it would not be paid, so he then began work at 8 a.m. daily. Approximately a week prior to his dismissal, the Complainant submits he was instructed by the Respondent Company that he was not to do any additional hours of work in future. The Complainant asserts that there never was any question or doubt but that he was an excellent employee who was always on time and indeed was promoted within the Respondent Company as Maintenance Manager in December 2018. The Complainant gave the following summary of what transpired on the day of his dismissal: The Complainant was asked to come to the Respondent’s administrative office. Mr A, a member of the Respondent’s management team, asked him to be at a job the following morning for 6 a.m. at a location in a nearby city. This would have required the Complainant to be at the yard to load up his truck at 4.30 a.m. He refused as he instructed Mr A that any time he had previously come to work early, he had not been paid for it and he confirmed to Mr A that he had been told the week previously that he was not to come into work early as he would not receive any overtime. Mr A agreed and when the Complainant left the office and returned to his truck to load it, he was met in the yard by Mr B, the business owner, who he claims insulted him and screamed at him and fired him on the spot. He was not afforded any due process nor was he given a reason for termination of his employment. He was told to leave the yard immediately. The Complainant, to mitigate his losses, submits that he took up employment with another Company on the 9th September 2019, Company X, at a remuneration of €250/week, a loss of €450 a week from his previous employment. He submits that he carried out the job as a labourer as he did not have any transportation and could not then get work as a scaffolder. The Complainant submits that he remained in this employment until March 2020 at which point Covid restrictions came in and the Complainant was on the Covid Unemployment payment for two and a half months and has now taken up new employment at a remuneration of €600/week average, Company Y. Copies of wage slips from company from both Company X and Y were submitted. |
Findings and Conclusions:
Preliminary Issue – Time limits. The applicable 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.…” The date of termination of the Complainant’s employment is 2 September 2019 and the six-month limitation period is assessed from that date. The complaint was logged as having been lodged with the Workplace Relations Commission on 3 March 2020, which is one day outside the required time limit. The test to extend the time to permit a claim of unfair dismissal, submitted later than six months but within one year, is that of “reasonable cause”. The established test for deciding if an extension should be granted for ‘reasonable cause’ shown is that formulated in the Labour Court Determination Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, where the Court considered “reasonable cause” in the following terms: “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.” Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows: “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 complainant would have 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. I have carefully considered the evidence submitted by both sides on the preliminary issue of time limits and particularly the Complainant’s application to extend the period for submission of the complaint for a further six months based on “reasonable cause”. There is no doubt that the Complainant and his partner suffered the most traumatic of events with the loss of a stillborn child and my deepest sympathy goes out to him and his girlfriend. The Complainant confirmed that this happened on the 17 January 2018. The day at issue here, whereby the submission period was missed by one day, is 3 March 2020, which is over two years later. The events of two years ago would have had an understandable stultifying effect on any human being at that time. However, I note that the Complainant stated in a written submission that he had been an excellent employee, with added responsibilities and good timekeeping, in a period after the sad happenings of January 2018 until his dismissal in September 2019. The Labour Court in Cementation Skanska above put it thus: “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 find it difficult to establish a causal link between the undoubtedly sad event in the Complainant’s life and the missing by the Complainant of a deadline by one day over two years later. The Complainant’s evidence suggests that he was able to carry out his daily duties to a very satisfactory level for a considerable period prior to his dismissal. It is the actual delay that must be explained, as outlined by the Labour Court in Salesforce.com above. Furthermore, I find that under the established jurisprudence, lack of knowledge or awareness on the part of a complainant of legal rights is not a justifiable excuse to base an extension of time application. I have the utmost sympathy for the Complainant in this case. However, he has not submitted a plausible reason as to why I should extend the period for submission of his complaint by a further 6 months. |
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.
CA-00034991-001 I find that the Complainant has failed to comply with the relevant time limits for submission of his complaint provided for within Section 8(2) of the Unfair Dismissal Acts 1977-2015. Accordingly, I do not have jurisdiction to inquire into this complaint. |
Dated: 1st March 2021
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Unfair Dismissals Act 1977, Time Limits, Out of time, |