Complainant

Respondent

Parties

Declan Kane

Mooney Milk Distribution Ltd

Representatives

Self

None

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-00067144-001

04/11/2024

The Complainant worked with the Respondent from 3rd January 2003 to 2nd March 2024. His weekly salary was €650 per week and he typically worked 48 hours each week.

He made an application to the WRC on 4th November 2024 alleging that he had been unfairly dismissed by the Respondent.

A preliminary issue in relation to statutory time limits was raised with the Complainant at the outset of the hearing and this is addressed further below.

The Complainant worked for a company that was subcontracted to a large nutrition company in order to provide milk distribution services.

The Complainant stated that on 1st March 2024 he was advised that a liquidator would be appointed to the Respondent but he was given no contact details or information about who that person was. He received a letter, a copy of which was provided at the hearing, signed by Deborah Mooney which stated:

This is to confirm that Declan Kane PPS No. […] finished working for Mooney Milk Distribution on Saturday 2nd March 2024.

The Complainant finished work on a Saturday morning and was trying to find out online who the liquidator was. He noted that the Respondent company was listed as struck off that weekend, but then two months later it’s status appeared as “normal”. He had been waiting for this liquidator to contact him for two months.

The van used as part of his employment sat outside his house for a period of 6 weeks before it was eventually collected on 14th April but he received no further information in relation to the company’s status and no communication whatsoever.

The nutrition company took it upon themselves to pay the Complainant 4 weeks wages but he says that the Respondent did nothing.

He has not worked since the 2nd March 2024. He was contacted by a colleague who has taken over the work from the Respondent. This person offered him work as soon as he was able to take it up. The Complainant, in response to queries from the Adjudication Officer, stated that he had been on illness leave due to an operation he had in December and is due another surgery shortly. The offer of alternative work came from his colleague on 24th May 2024 and he was advised to take all the time he needs and come back to him when he was ready to start work. He expects to receive the same salary in this post as he did from the Respondent.

The Respondent did not attend the hearing and no submissions were received.

The Respondent was notified of the hearing arrangements by way of letter dated 20th January 2025. I am satisfied that the Respondent was on notice of the date, time and venue of the hearing.

Preliminary Issue – statutory time limit and reasonable cause

Section 41 of the Workplace Relations Act, 2015 provides as follows:

(6) Subject to subsection (8), 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.

(8) 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.

The effect of these provisions is that a complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the complaints were received by the Director General. This period can be extended to twelve months in accordance with the provisions of section 41(8) of the Act in circumstances where the complainant can demonstrate that there was “reasonable cause” which prevented him from referring the complaint within the prescribed time limit.

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay. 

The Labour Court set out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338]. In that decision it 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.”

Taking the above into consideration, for an explanation of reasonable cause to succeed:

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                 A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the above that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. The Labour Court has further emphasised that where reasonable cause is shown a decision maker must still consider if it is appropriate in the circumstances to exercise their discretion in favour of granting an extension of time and whether or not the respondent has suffered any prejudice by the delay. 

The burden of proof in establishing the existence of reasonable cause therefore rests with the Complainant. To discharge that burden, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time.

Finally, I must satisfy myself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

In this case, the Complainant explains the delay by saying that the Respondent company appeared to be struck off on the Companies Registration Office records. He therefore thought that it would be pointless to pursue any claim against a non-trading company. However, two months later the company status appeared as normal and the Complainant offers this as the reason for the delay in submitting his claim.

The Complainant’s last day of work was 2nd March 2024 and the complaint form was submitted on 4th November 2024. This is 8 months and 2 days from the date of termination. The statutory time limit, as set out above, is 6 months. This means that that Complainant must explain and excuse a delay of two months and 2 days in submitting his claim form.

I find that the fact that the company status appeared as struck off for this same period does explain and excuse the delay in submitting the complaint form. It is a reasonable explanation that is causally linked to the circumstances and I am satisfied that, if the company status had remained as “normal” that the Complainant would have submitted his complaint within the time allowed. For that reason, I am exercising my discretion under section 41(8) and extending the time allowed to submit a complaint.

That being the case, the next issue I must look at is the Complainant’s claim that he was unfairly dismissed.

Unfair Dismissals Complaint

Section 2 of the Unfair Dismissals Act 1977, as amended, (the “1977 Act”) provides as follows:-

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

I am satisfied that the Complainant was dismissed in accordance with section 2(a) as set out above. That is, that his contract of employment was terminated by his employer. The letter from Ms. Debbie Mooney confirming that the Complainant finished work with the Respondent on 2nd March 2024 supports this.

The next issue I must look at is whether or not that dismissal was unfair.

Section 6(1) the 1977 Act states that:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal, unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(7) of the 1977 Act provides that in determining whether a dismissal is unfair, regard may be had:-

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice …”

The combined effect of the above-mentioned provisions is that the onus is on the employer to establish a fair dismissal. In the circumstances of this case, the Respondent did not appear to put forward any facts to establish that the dismissal could be deemed fair and so, in the absence of any evidence from the Respondent, I am satisfied that the dismissal was unfair.

This then raises the question of what remedy is available to the Complainant.

Section 7 of the Unfair Dismissals Act which, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

Section 7(3) of the Act further states that:

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation”;

As the Complainant no longer has any relationship with the Respondent, I am satisfied that re-instatement or re-engagement are not appropriate remedies in this case. That leaves the remedy of compensation.

As is clear from the Act, in particular section 7(1)(c)(i), compensation is for “any financial loss attributable to the dismissal”. Financial loss is defined as including actual loss and estimated prospective loss of income. The Complainant stated that he was at a loss of his income of €650 per week. When questioned in relation to whether or not he had secured alternative work, he explained that he had been offered employment but, as of the hearing date, has not yet taken it up due to illness.

Section 7 states that I may make an award for any financial loss attributable to the dismissal. The onus is therefore on the Complainant to establish what financial loss he suffered.

It is well established that if a Complainant is unavailable for work arising from incapacity then they are unable to claim for loss of earnings in the same period, as they would have been unable to work in any event. In this case, the Complainant stated that he had been unable to take up new employment due to his illnesses. Therefore, any loss suffered during this period cannot be taken into consideration in this forum. My role is to ascertain what financial loss is attributable to an act, omission or conduct by or on behalf of the employer.

Section 7(2)(c) states that in determining the amount of compensation payable regard must be had to “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid“. This section means that a Complainant must mitigate their loss, that is, they must make every effort to secure alternative employment and reduce any potential loss. In this case, the Complainant did not provide any evidence that he sought alternative employment between the 2nd March and the 24th May. Thereafter, he was unavailable for the work that he had been offered by reason of incapacity. I am therefore not satisfied that the Complainant has established any financial loss that is attributable directly to his dismissal.

As the Complainant has not satisfied me as to his financial loss, I am making an award under section 7(1)(c)(2) for an amount not exceeding 4 weeks remuneration in respect of the employment from which he was dismissed. That is, €650 x 4 weeks = €2,600.

I find that the complaint is well founded. The Complainant was unfairly dismissed and for that reason I direct that the Respondent pay to the Complainant the sum of €2,600.

Unfair dismissal – failure to mitigate loss – onus on complainant to establish financial loss