FULL RECOMMENDATION
PARTIES : PALLAS FOODS/PALLAS FOODS UNLIMITED COMPANY DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00027661. BACKGROUND: This is an appeal by Mr Thomas Duffy against the decision of an Adjudicator Officer (ADJ--00027661) dated 12 August 2021 under the Unfair Dismissals Act 1977 (“the Act”). The Adjudicator held ‘the complaint fails in circumstances where the complaint issued outside the timeline allowed by the Unfair Dismissals Statutes’. A Notice of Appeal was received by the Labour Court on 20 September 2021. A hearing of the Labour Court to hear the preliminary matter in relation to an application for an extension of time was held on 18 February 2022. APPLICATION FOR AN EXTENSION OF TIME: It is accepted that the Applicant’s employment terminated on 25 September 2019, and that a claim against the Respondent was lodged with the Workplace Relations Commission (WRC) on 25 March 2020, one day outside the six-month time limit allowed. It was only after a chance meeting with the representative at a family funeral, that she became aware that the Applicant had not lodged a claim to the WRC. The Applicant’s representative sought to remedy this. She would have hand delivered the appeal form to the WRC on 22 March 2020, but due to a combination of Covid and moving house was unable to do so. As a result, the appeal form was lodged one day out of time. The medical documents submitted to the Court relate to an absence in June 2017, two years prior to his dismissal. There is no “causal link”between the circumstances cited and the claimant’s failure to present the claim within the six-month time limit. In January 2020, the Applicant wrote to the Respondent indicating his wish to appeal the termination of his employment, and cited “personal issues” not medical grounds, as the reason for failing to write up to that point. He engaged in this correspondence well within the 6-month time frame, and it was open to him to subsequently lodge an appeal to the WRC within time, right up until 24 March 2020. The Respondent submits that no valid explanation to properly account for the delay has been furnished that offers an excuse or explains that delay. Furthermore, direct evidence demonstrates that the Applicant was in a position to submit his claim and was actively progressing his intention to do so through correspondence with the Respondent well within the 6-month timeframe. RELEVANT LAW: Section 8 of the Unfair Dismissals Act addresses the determination of claims for unfair dismissal. Section 8(2) sets out as follows: (2) 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. DELIBERATION AND FINDINGS: The Applicant’s employment terminated on 25 September 2019, and a claim against the Respondent in the within claim was lodged with the WRC on 25 March 2020, one day outside the six-month time limit allowed in Section 8(2)(a) of the Act. The conventional approach to statutory time limits in employment rights cases is that the failure of an Applicant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim. Section 8(2)(b) of the Act allows a claim to be lodged within 12 months of the date of dismissal, where the lodging of a claim within six months was prevented due to reasonable cause. The established test for “reasonable cause” was set out by this Court inCementation Skanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338. That case set the established test for deciding if an extension should be granted for reasonable cause, and was set out 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. 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.” The burden of proof in establishing the existence of reasonable cause rests with the Applicant. To discharge that burden the Applicant must show that there are reasons which both explain the delay and afford an excuse for the delay which prevented the lodgement of the appeal within time. The Applicant submits that the circumstances that arose in this case giving rise to the delay meet the test of “reasonable cause”. It is submitted that the primary reason preventing the lodgement of an appeal to the WRC relates to the Applicant’s ill-health during the six-month period after the termination of his employment. However, no evidence in relation to the Applicant’s medical status during the period in question was submitted to the Court to support this contention. Furthermore, it is accepted that the Applicant engaged in correspondence with the Respondent in January 2020 to seek an appeal of the decision to terminate his employment the previous September. It is clear that the Applicant was medically fit and able to engage in correspondence at that time. However, no adequate explanation was provided as to why a complaint was not lodged to the WRC, after that date and before the expiry of the 6-month time limits on 24 March 2020. The Court has consistently taken the approach that it is for the Applicant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case. DETERMINATION: Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission on 25 March 2020 and is accordingly statute barred. In these circumstances, the Court cannot proceed to hear the substantive matter. The appeal is rejected, and the Decision of the Adjudication Officer is upheld. The Court so Determines.
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