Complainant

Respondent

Parties

Paula  Hynes

Department Of Social Protection

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Lucy Dwyer, BL, instructed by The Chief State Solicitor’s Office.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00066219-001

23/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00066219-002

23/09/2024

The Complainant was employed as an Executive Officer with the Department of Social Protection form 01/11/2006 until 15/10/2022.  She retired following a  period of illness and her inability to attend work on two days per week.

She submitted her complaints to the WRC on 23/09/2024.  She is alleging that there was an unlawful deduction made from her wages and that she was constructively dismissed.

The Respondent denies the allegations and submits that the WRC does not have jurisdiction to hear these two complaints as they are significantly out of time.

The Complainant was advised by the WRC on 07/10/2024 that the complaints as submitted appeared to be out of time.  The Complainant stated that she believed that she had reasonable grounds to have the time limit extended and wished to outline these at a WRC hearing.

The Complainant gave evidence on oath.  She gave evidence in relation to her medical history and the effects this had on her.  She stated that she was misdiagnosed on a few occasions and this prolonged her illness.  She was working remotely and when she was asked to return to work for two days she was unable to do so due to her illness.  As a result of this she decided to retire much earlier than she had planned.   It was the Complainant’s evidence that when her request to continue working remotely was refused she was forced to retire as she was physically unable to attend work as requested.  The Complainant also stated in evidence that when she received her lump sum there was a deduction of €3,000 and she felt that this was not right but she has not received an explanation for this.   At that time she was told that as a Civil Servant she could not lodge a complaint in the WRC.  The Complainant also stated that as a result of her illness she was unable to deal with her affairs.  When she subsequently became aware that she could submit her complaints to the WRC she done so.  Given the effects of her illness and the debilitating effects this had on her she feels that her case should be heard.  

In response to questions from the Adjudication Officer the Complainant confirmed that she understood the technicalities of the legislation in relation to time frames. The Complainant confirmed that she understood that a decision in relation to the timeframe was pivotal to her case. 

The Respondent raised a preliminary matter in relation to the two complaints submitted by the Complainant.  It was stated on behalf of the Respondent that the Complainant agrees that her employment ended on 15/10/2022 and that her complaints were submitted to the WRC on 17/09/2024 and received by the WRC on 23/09/2024.  These complaints were made almost two years after the Complainant’s employment ended.

Section 41 (6) of the Workplace Relations Act 2025 gives the WRC jurisdiction to hear a complaint and provides that a complaint shall not be entertained after the expiration of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (8) of the 2015 Act goes on to provide that the six month period can be extended if the failure to present the complaint to the WRC within six months was due to a reasonable cause but this extension is only for a further six month period.

Section 8 (2) of the Unfair Dismissals Acts, as amended by the 2015 Act, is also relevant and provides 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 that 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”.

It was submitted on behalf of the Respondent that the complaint is out of time and the Complainant has not provided reasonable cause for the failure to make the complaint to the WRC within time.  The Respondent also relies on the test established in Cementation Shanska v Carroll (DWT0338).  This case held that if reasonable cause exists it is for the claimant to show there are reasons which explain the delay and afford an excuse for the delay.  The Respondent also noted that the decision of Costello J in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] 1 ILRM 301 clarified  the test of “good reasons” “must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she were justified in delaying the institution of proceedings”.

It was submitted on behalf of the Respondent that all the allegations made by the Complainant are denied and the Complainant has failed to show reasonable cause.  It is the Respondent’s position that even if the extension of time was allowed the complaint is still statute barred.  The Respondent submits that the WRC does not have jurisdiction to hear the complaints and the complaints should be dismissed.

Preliminary Matter CA-00066219-001; CA-00066219-002: 

It is not disputed that the Complainant’s employment ended on 15/10/2022. It is also not disputed that this is the relevant date of contravention for a complaint pursuant to the 1977 Act.

Section 8(2) of the 1977 Act provides:

“(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 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’ in section 41(8) of the Workplace Relations Act is worded slightly differently and provides in the relevant part:

‘(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 difference in wording of both provisions is the 1977 Act refers to the Complainant being ‘prevented due to reasonable cause’, while the Workplace Relations Act refers to ‘due to reasonable cause’ and makes no reference to prevention. It is noted that the relevant test in both Acts is that of “reasonable cause”.

The well-established test for granting an extension of time for reasonable cause is set out in the Labour Court decision of Cementation Skanska (formerly Kvaerner Cementation) v Carroll (DWT0338) where the Court held:

‘It is the Court's view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant 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 Complainant has a good arguable case.’

The Complainant referred her claim to the WRC on the 17/09/2024 and was received by the WRC on 23/09/2024.  This is clearly outside the 6-month time limit as provided for at Section 8 (2) (a). The time limit may be extended up to 12 months where I am satisfied that there was reasonable cause for not submitting the claim within the 6-month time limit.  It is noted that the claim was referred after one year and eleven months  after the termination of the Complainant’s employment.

The onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of reasonable cause. 

I appreciate that the Complainant suffered as a result of her serious illness.  I also appreciate that the effects of this illness made it difficult for her to deal with the challenges of daily living and managing her affairs.  However, in the circumstances of this case I cannot find that she has satisfied the test for establishing reasonable cause as required under Section 8(2) (b) of the 1977 Act. I am also satisfied that the Complainant has not provided cogent reasons which would determine that there was reasonable cause for the delay in submitting the complaints.  In any event the complaints were submitted outside the period of time which an extension could provide.

Adjudication Officers of the WRC are creatures of statute and can only consider complaints submitted within the statutory time provided by relevant legislation.

It is clear that the complaints in this case falls not only outside a period of six months but also the twelve-month extension period.  Consequently, I have no jurisdiction to hear and consider these complaints.

CA-00066219-001: I have decided that I do not have jurisdiction to hear this complaint.

CA-00066219-002: I have decided that I do not have jurisdiction to hear this complaint.

Time frame.  Reasonable cause.