ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028745
Parties:
| Complainant | Respondent |
Parties | Bryan O'Neill | Carlingford Adventure Centre Ltd |
| Complainant | Respondent |
Anonymised Parties | A Senior Water Instructor | A Sports Centre |
Representatives | Not legally represented. Accompanied by his father, Mr David O’Neill | Aaron Shearer BL |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038594-001 | 08/07/2020 |
Date of Adjudication Hearing: 13/07/2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on July 8th 2020 and, in accordance with section 8 of the Unfair Dismissals Acts 1977 - 2015, it was assigned to me by the Director General. Due to the closure of the WRC as a result of the Covid-19 pandemic, a hearing was delayed until July 13th 2021. On that date, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. At the hearing, I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
The complainant was accompanied at the remote hearing by his father, Mr David O’Neill. The respondent was represented by Mr Aaron Shearer BL, instructed by Mr Peter McGuinness of McGuinness & Company Solicitors LLP. The respondent’s chief executive officer (“CEO”), Mr Thomas McArdle attended and gave evidence. The managing director, who is the son of the CEO and also called Thomas McArdle, attended as did the operations manager, Mr Peter Enright. An independent consultant, Mr Eugene Grant, attended to give evidence regarding an investigation he conducted into an incident related to the complainant’s decision to resign on August 12th 2019.
At the opening of the hearing, I alerted the parties to the judgement of the Supreme Court in the case of Zalewski v Adjudication Officer and WRC [2021] IESC 24 which was delivered on 6th April, 2021 with a further ruling on 15th April 2021. I informed them that, from April 6th 2021, hearings at the WRC may be held in public and that it is likely that the parties will be named in the published decisions. I also informed them that evidence may be heard under oath. On the date of this hearing, the legislation had not been amended to provide for prosecution for the giving of false evidence. The parties confirmed that they were willing to proceed in these circumstances.
Background:
The complainant is a water sports instructor and, before he was offered a permanent contract on May 5th 2018, he worked for the respondent for a number of years on a seasonal basis. On July 19th 2019, two altercations occurred involving the complainant and the CEO. During the first argument, the complainant alleges that the CEO poked him on the shoulder. He said that they both behaved in an unprofessional manner. The complainant said that the argument “reignited” later that day and that the CEO prevented him from leaving the premises. On August 8th 2019, following an investigation by an independent consultant, the complainant was issued with a written warning regarding his conduct on July 19th. Another argument between the complainant and the CEO occurred on August 12th 2019 and the complainant alleges that he was shouted at and belittled in front of his colleagues. He left his job that day, because he felt that his mental and psychological health were affected by this treatment. He claims that he was constructively dismissed. One week later, on August 19th, the complainant submitted a form to the WRC, requesting an investigation under section 13 of the Industrial Relations Act 1969 (“the IR Act”). A hearing scheduled for January 30th 2020 was adjourned at the request of the respondent and a hearing then took place on February 24th 2020; however, no one attended for the respondent. Finding in favour of the complainant, on March 19th 2020, the adjudicator, Mr Breiffni O’Neill, recommended that the respondent pay him €7,500 in compensation. The respondent took no action on foot of this recommendation. On July 8th 2020, 11 months after he left his job, the complainant submitted a second form to the WRC, requesting an investigation under the Unfair Dismissals Act 1977 – 2015 (“the UD Act”). The time limit for submitting such a complaint expired on February 11th 2020 and, in accordance with section 41(8) of the Workplace Relations Act 2015, the complainant has requested an extension of the time limit to 12 months. A preliminary issue therefore arises regarding the complainant’s case that there is reasonable cause to grant this extension. |
Preliminary Issue: Time Limit for Submitting a Complaint
Section 41(6) of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication: “…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.” An extension of time is provided for at subsection (8) of this section: “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.” It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” an extension of the time limit for submitting a complaint from six months to 12 months may be permitted. This complaint was submitted five months outside the six-month time limit. The Complainant’s Position on the Extension of the Time Limit Following the submission of his complaint under the UD Act, the complainant was informed about the time limit and invited to provide an explanation for the delay. On July 27th 2020 he sent a submission to the WRC in which he explained the background. The complainant said that the submission of his complaint on August 19th 2019 under the IR Act was an error, where he ticked the wrong box on the e-complaint form. He said that he was not legally advised and that he couldn’t afford to employ a solicitor. At the end of the hearing under the IR Act on February 24th 2020, the complainant said that the adjudicator advised him to submit a complaint under the UD Act. On March 11th 2020, before the adjudicator issued his recommendation, the complainant was in contact with the adjudication services and was again advised to submit a complaint under the UD Act. He said that he contacted the Legal Aid Board for assistance, but that, due to the onset of the Covid-19 pandemic, their offices were temporarily closed. He said that he subsequently received advice to submit a complaint under the UD Act and an official from the Legal Aid Board completed the form that he submitted on July 8th 2020. In his submission, the complainant argued that the respondent was notified early on that he intended to make a complaint of unfair dismissal. He claims that, if the initial hearing scheduled for January 30th had gone ahead, he would have been advised earlier to make a complaint under the UD Act. His view is that the respondent is not prejudiced by the delay, having been reminded regularly by the WRC that he had made a complaint. As he has been successful in his complaint under the IR Act, he claims that he has a good arguable case. The Respondent’s Position on the Extension of the Time Limit The respondent’s submission notes that the complainant delayed submitting a complaint under the UD Act on two occasions. In the first instance, he had until February 11th 2020 to make a complaint under the UD Act, but he failed to do so, and complained instead under the IR Act. Secondly, having been advised on February 24th and March 11th that he could submit a complaint under the UD Act, he delayed for four months, until July 8th. It is the respondent’s case that the complainant’s assertion that he made an error on the complaint form he submitted on August 19th 2019 does not amount to reasonable cause because it has been established that ignorance of the law doesn’t amount to reasonable cause. In support of the respondent’s position, Mr Shearer referred to the following legal precedents: PJ Personnel Limited and Clint Maguire[1] Relying on the test formulated by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll[2], the Court found that, while the efforts of the complainant’s union representative to resolve matters locally was the cause of the delay submitting his complaint on time, it was not a sufficient excuse for the delay. Avery Weigh-Tronix and Tom Kinsley[3] The Labour Court was satisfied that the complainant in this case was unaware of his legal rights to pursue his entitlements to annual leave and public holidays when he was absent due to illness; however, it reached a conclusion, that “ignorance of the law cannot provide a justifiable excuse for a failure to bring a complaint in time.” Salesforce.com and Alli Leech[4] Here again, the Court referred to the established test in Cementation Skanska, which, it was noted, relied on an examination of the meaning of the term “good reason,” in the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[5]. It is apparent from these decisions that the hurdle that a complainant seeking an extension of time must surmount is the establishment of “a causal connection” between the reason for the delay and the delay itself. Findings on the Request for an Extension to the Time Limit The complainant said that he didn’t submit a complaint under the UD Act in the first instance because he was not legally advised and, in error, he submitted a complaint under the IR Act. Secondly, when he was advised to submit a complaint under the UD Act, he failed to do so because the office of the Legal Aid Board was closed in March 2020 due to the Covid 19 pandemic. Based upon the established principles in Cementation Skanska and Carroll, my task is to consider if this explanation is reasonable, and, if there is “a causal link” between the explanation and the delay. Regarding the first reason proffered, that the complainant couldn’t afford to consult a solicitor, I am mindful of the many complainants who submit their complaints without legal assistance. Some are foreign nationals, and the challenge of navigating the e-complaint form is more onerous for them than for someone whose native language is English. I must also take account of the free advice about how to submit a complaint on the websites of the WRC and the Citizens Information Service. With these factors in mind and, taking my authority from the conclusion of the Labour Court in the Avery Weigh-Tronix decision cited by Mr Shearer, I must conclude that a lack of understanding of the law is not a justifiable excuse for failing to bring a complaint on time. In his evidence, the complainant said that, at the end of the hearing on February 24th the adjudicator advised him to submit a complaint. He said that he got the same advice from the WRC information service on March 11th. At this point, he was just a few days past the six-month time limit, but he delayed submitting a complaint until July 8th. I find that the complainant’s explanation, that he was waiting for the Legal Aid Board to re-open after the Covid closure simply not credible. The earliest date that the offices closed was around March 18th, and they must have opened, at least for telephone advice, before July 8th. It seems to me also that the complainant’s second explanation is intrinsically linked to his first excuse, that he hadn’t got legal advice, and we have established that this excuse is not justifiable. Having been advised in February and March 2020, that he could bring a complaint under the UD Act, the complainant delayed another four months before doing so. The excuse that he was waiting for advice from the Legal Aid Board to fill in the e-complaint form is inadequate and does not make sense. In conclusion, I find that the complainant had not provided a reasonable excuse for the delay of 11 months before he submitted a complaint under the UD Act. I find also that the delay of four additional months after he was advised to submit a complaint is inexcusable. Finally, the complainant has made no connection between his excuse that the Legal Aid Board was closed in March 2020 and the submission of his complaint in July. In March 2020, the recommendation of the adjudicator was arrived at without the participation of the respondent and, it is my view that the recommendation does not demonstrate that the complainant has an arguable case that his resignation amounts to an unfair dismissal. Having considered these issues, I find that the explanation that the complainant has given as the reason for the delay in presenting his complaint is not sufficient for me to permit an extension beyond the six-month time limit. |
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 have concluded that there was no reasonable cause for the complainant submitting his complaint outside the legal time limit. I decide therefore, that I have no jurisdiction to adjudicate on this complaint. |
Dated: 08th September 2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Complaint is outside the six-month time limit. |
[1] AWD201
[2] DWT0338
[3] DWT1244
[4] EDA1615
[5] [1991] IRLM30
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028745
Parties:
| Complainant | Respondent |
Parties | Bryan O'Neill | Carlingford Adventure Centre Ltd |
Representatives | Not legally represented. Accompanied by his father, Mr David O’Neill | Aaron Shearer BL |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038594-001 | 08/07/2020 |
Date of Adjudication Hearing: 13/07/2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Procedure:
This complaint was submitted to the WRC on July 8th 2020 and, in accordance with section 8 of the Unfair Dismissals Acts 1977 - 2015, it was assigned to me by the Director General. Due to the closure of the WRC as a result of the Covid-19 pandemic, a hearing was delayed until July 13th 2021. On that date, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. At the hearing, I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaint.
The complainant was accompanied at the remote hearing by his father, Mr David O’Neill. The respondent was represented by Mr Aaron Shearer BL, instructed by Mr Peter McGuinness of McGuinness & Company Solicitors LLP. The respondent’s chief executive officer (“CEO”), Mr Thomas McArdle attended and gave evidence. The managing director, who is the son of the CEO and also called Thomas McArdle, attended as did the operations manager, Mr Peter Enright. An independent consultant, Mr Eugene Grant, attended to give evidence regarding an investigation he conducted into an incident related to the complainant’s decision to resign on August 12th 2019.
At the opening of the hearing, I alerted the parties to the judgement of the Supreme Court in the case of Zalewski v Adjudication Officer and WRC [2021] IESC 24 which was delivered on 6th April, 2021 with a further ruling on 15th April 2021. I informed them that, from April 6th 2021, hearings at the WRC may be held in public and that it is likely that the parties will be named in the published decisions. I also informed them that evidence may be heard under oath. On the date of this hearing, the legislation had not been amended to provide for prosecution for the giving of false evidence. The parties confirmed that they were willing to proceed in these circumstances.
Background:
The complainant is a water sports instructor and, before he was offered a permanent contract on May 5th 2018, he worked for the respondent for a number of years on a seasonal basis. On July 19th 2019, two altercations occurred involving the complainant and the CEO. During the first argument, the complainant alleges that the CEO poked him on the shoulder. He said that they both behaved in an unprofessional manner. The complainant said that the argument “reignited” later that day and that the CEO prevented him from leaving the premises. On August 8th 2019, following an investigation by an independent consultant, the complainant was issued with a written warning regarding his conduct on July 19th. Another argument between the complainant and the CEO occurred on August 12th 2019 and the complainant alleges that he was shouted at and belittled in front of his colleagues. He left his job that day, because he felt that his mental and psychological health were affected by this treatment. He claims that he was constructively dismissed. One week later, on August 19th, the complainant submitted a form to the WRC, requesting an investigation under section 13 of the Industrial Relations Act 1969 (“the IR Act”). A hearing scheduled for January 30th 2020 was adjourned at the request of the respondent and a hearing then took place on February 24th 2020; however, no one attended for the respondent. Finding in favour of the complainant, on March 19th 2020, the adjudicator, Mr Breiffni O’Neill, recommended that the respondent pay him €7,500 in compensation. The respondent took no action on foot of this recommendation. On July 8th 2020, 11 months after he left his job, the complainant submitted a second form to the WRC, requesting an investigation under the Unfair Dismissals Act 1977 – 2015 (“the UD Act”). The time limit for submitting such a complaint expired on February 11th 2020 and, in accordance with section 41(8) of the Workplace Relations Act 2015, the complainant has requested an extension of the time limit to 12 months. A preliminary issue therefore arises regarding the complainant’s case that there is reasonable cause to grant this extension. |
Preliminary Issue: Time Limit for Submitting a Complaint
Section 41(6) of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication: “…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.” An extension of time is provided for at subsection (8) of this section: “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.” It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” an extension of the time limit for submitting a complaint from six months to 12 months may be permitted. This complaint was submitted five months outside the six-month time limit. The Complainant’s Position on the Extension of the Time Limit Following the submission of his complaint under the UD Act, the complainant was informed about the time limit and invited to provide an explanation for the delay. On July 27th 2020 he sent a submission to the WRC in which he explained the background. The complainant said that the submission of his complaint on August 19th 2019 under the IR Act was an error, where he ticked the wrong box on the e-complaint form. He said that he was not legally advised and that he couldn’t afford to employ a solicitor. At the end of the hearing under the IR Act on February 24th 2020, the complainant said that the adjudicator advised him to submit a complaint under the UD Act. On March 11th 2020, before the adjudicator issued his recommendation, the complainant was in contact with the adjudication services and was again advised to submit a complaint under the UD Act. He said that he contacted the Legal Aid Board for assistance, but that, due to the onset of the Covid-19 pandemic, their offices were temporarily closed. He said that he subsequently received advice to submit a complaint under the UD Act and an official from the Legal Aid Board completed the form that he submitted on July 8th 2020. In his submission, the complainant argued that the respondent was notified early on that he intended to make a complaint of unfair dismissal. He claims that, if the initial hearing scheduled for January 30th had gone ahead, he would have been advised earlier to make a complaint under the UD Act. His view is that the respondent is not prejudiced by the delay, having been reminded regularly by the WRC that he had made a complaint. As he has been successful in his complaint under the IR Act, he claims that he has a good arguable case. The Respondent’s Position on the Extension of the Time Limit The respondent’s submission notes that the complainant delayed submitting a complaint under the UD Act on two occasions. In the first instance, he had until February 11th 2020 to make a complaint under the UD Act, but he failed to do so, and complained instead under the IR Act. Secondly, having been advised on February 24th and March 11th that he could submit a complaint under the UD Act, he delayed for four months, until July 8th. It is the respondent’s case that the complainant’s assertion that he made an error on the complaint form he submitted on August 19th 2019 does not amount to reasonable cause because it has been established that ignorance of the law doesn’t amount to reasonable cause. In support of the respondent’s position, Mr Shearer referred to the following legal precedents: PJ Personnel Limited and Clint Maguire[1] Relying on the test formulated by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll[2], the Court found that, while the efforts of the complainant’s union representative to resolve matters locally was the cause of the delay submitting his complaint on time, it was not a sufficient excuse for the delay. Avery Weigh-Tronix and Tom Kinsley[3] The Labour Court was satisfied that the complainant in this case was unaware of his legal rights to pursue his entitlements to annual leave and public holidays when he was absent due to illness; however, it reached a conclusion, that “ignorance of the law cannot provide a justifiable excuse for a failure to bring a complaint in time.” Salesforce.com and Alli Leech[4] Here again, the Court referred to the established test in Cementation Skanska, which, it was noted, relied on an examination of the meaning of the term “good reason,” in the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[5]. It is apparent from these decisions that the hurdle that a complainant seeking an extension of time must surmount is the establishment of “a causal connection” between the reason for the delay and the delay itself. Findings on the Request for an Extension to the Time Limit The complainant said that he didn’t submit a complaint under the UD Act in the first instance because he was not legally advised and, in error, he submitted a complaint under the IR Act. Secondly, when he was advised to submit a complaint under the UD Act, he failed to do so because the office of the Legal Aid Board was closed in March 2020 due to the Covid 19 pandemic. Based upon the established principles in Cementation Skanska and Carroll, my task is to consider if this explanation is reasonable, and, if there is “a causal link” between the explanation and the delay. Regarding the first reason proffered, that the complainant couldn’t afford to consult a solicitor, I am mindful of the many complainants who submit their complaints without legal assistance. Some are foreign nationals, and the challenge of navigating the e-complaint form is more onerous for them than for someone whose native language is English. I must also take account of the free advice about how to submit a complaint on the websites of the WRC and the Citizens Information Service. With these factors in mind and, taking my authority from the conclusion of the Labour Court in the Avery Weigh-Tronix decision cited by Mr Shearer, I must conclude that a lack of understanding of the law is not a justifiable excuse for failing to bring a complaint on time. In his evidence, the complainant said that, at the end of the hearing on February 24th the adjudicator advised him to submit a complaint. He said that he got the same advice from the WRC information service on March 11th. At this point, he was just a few days past the six-month time limit, but he delayed submitting a complaint until July 8th. I find that the complainant’s explanation, that he was waiting for the Legal Aid Board to re-open after the Covid closure simply not credible. The earliest date that the offices closed was around March 18th, and they must have opened, at least for telephone advice, before July 8th. It seems to me also that the complainant’s second explanation is intrinsically linked to his first excuse, that he hadn’t got legal advice, and we have established that this excuse is not justifiable. Having been advised in February and March 2020, that he could bring a complaint under the UD Act, the complainant delayed another four months before doing so. The excuse that he was waiting for advice from the Legal Aid Board to fill in the e-complaint form is inadequate and does not make sense. In conclusion, I find that the complainant had not provided a reasonable excuse for the delay of 11 months before he submitted a complaint under the UD Act. I find also that the delay of four additional months after he was advised to submit a complaint is inexcusable. Finally, the complainant has made no connection between his excuse that the Legal Aid Board was closed in March 2020 and the submission of his complaint in July. In March 2020, the recommendation of the adjudicator was arrived at without the participation of the respondent and, it is my view that the recommendation does not demonstrate that the complainant has an arguable case that his resignation amounts to an unfair dismissal. Having considered these issues, I find that the explanation that the complainant has given as the reason for the delay in presenting his complaint is not sufficient for me to permit an extension beyond the six-month time limit. |
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 have concluded that there was no reasonable cause for the complainant submitting his complaint outside the legal time limit. I decide therefore, that I have no jurisdiction to adjudicate on this complaint. |
Dated: 08th September 2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Complaint is outside the six-month time limit. |
[1] AWD201
[2] DWT0338
[3] DWT1244
[4] EDA1615
[5] [1991] IRLM30