ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033037
Parties:
| Complainant | Respondent |
Parties | Sylvia Morgan | Total Expo Limited |
Representatives | In person | AMOSS 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-00043265-001 | 26/03/2021 |
Date of Adjudication Hearing: 14/04/2022
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 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.
Background:
The complainant was employed by the respondent from 28th May 2018 until her employment ended by reason of redundancy on 6th July 2020. The complaint was lodged to the Workplace Relations Commission (WRC) on 26th March 2021 and relates to an alleged unfair dismissal.
The complaint was heard virtually on 14th April 2022. The complainant represented herself at the adjudication hearing. As the complaint was submitted to the WRC outside of the six-month time period permitted by the legislation, the complainant was provided with a period of time post hearing to furnish the WRC with a supplemental submission on the issue of seeking an extension of time. The complainant’s supplemental submission was received on 26th April 2022. The respondent was provided with an opportunity to respond to the complainant’s supplemental submission and its response was received on 17th May 2022. |
Preliminary Issue – Timing of the complaint
Summary of Respondent’s Case:
In its initial submissions, the respondent stated that the complaint was submitted outside of the statutory six-month timeframe permitted by the legislation. The respondent contends that the complaint should be dismissed as the complainant has not put forward reasons that would meet the required test of establishing reasonable cause for the delay in submitting the complaint and thereby justifying an extension of time. In supplemental submissions received by the WRC on 17th May 2022, the respondent reiterated its position that the complainant has not met the “reasonable cause” test as set out in the Labour Court Determination in Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338. The respondent further outlined that the complainant confirmed that she was unaware of the WRC and the services it provides. The respondent cited the cases of Global Technical Services Limited v Kirstin Miller [2018] JIEC1702 which states 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. The respondent also cited the Labour Court Determinations in Pat the Baker v Conor Brennan [2018] 7 JIEC and Galway and Roscommon ETB v Kenny UDD1524 in support of its position on the point that ignorance of the law is no excuse and its contention that the complaint should be dismissed as being out of time. |
Summary of Complainant’s Case:
In supplemental submissions received by the WRC on 26th April 2022, the complainant contended that the legal principle of “ignorance is no defence” while still applicable has been “whittled down by several exceptions”. The complainant stated that a person who is “reasonably ignorant of the law is morally innocent and not deserving of punishment.” The complainant also added that she was unaware of the WRC and its services until she commenced a course after her redundancy had taken place. The complainant further outlined that she was dealing with other personal challenges in advance of June and July 2021 and that these issues should be taken into account when considering whether to grant an extension of time. |
Findings and Conclusions:
I have given careful consideration to the submissions of both parties to this complaint. The complaint was submitted outside of the six-month period provided by the legislation. The complainant is seeking an extension of time on the basis that she did not know about the WRC when she was made redundant in July 2020 and other personal challenges during that time prevented her from submitting her complaint in time. The Applicable Law Section 8(2) of the Unfair Dismissals Act, 1977 states 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. Reasonable cause The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska v Carroll which states 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”. The legal test for establishing reasonable cause as set out above requires that a reason is given for the late referral of the complaint. The reason(s) given must both explain and excuse the delay and if these conditions are met, an extension of time may be granted to the complainant. The complainant’s reasons for not submitting her complaint in time are that she was unaware of the existence of the WRC and that she was experiencing personal challenges in the period up to June/July 2021. While I empathise with the complainant in relation to her personal circumstances, her employment ended by reason of redundancy on 6th July 2020 and her complaint could have been submitted online anytime in the 6 months that followed. In all of the circumstances of the complaint and having considered the case law cited in respect of the complaint I do not find that the complainant has satisfied the “reasonable cause” test as set out in Cementation Skanska v Carroll DWT0338. Accordingly, I do not grant the extension of time. |
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.
Having considered the submissions of both parties, I find that the complaint is out of time and is therefore statute barred. |
Dated: 08/09/2022
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
Unfair dismissal, complaint out of time |