Complainant

Respondent

Parties

Siobhan  O'Connell

Chubb Ireland Ltd

Representatives

 Don Ryan & Co Solicitors

 IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11A of the Protection of Employment Act 1977

CA-00052261-001

11/08/2022

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

CA-00065141-001

01/08/2024

Both complaints submitted to the Workplace Relations Commission (WRC) relate to the complainant’s dismissal from her employment. The initial complaint submitted on 11th August 2022 was referred in error under the provisions of the Protection of Employment Act, 1977. The complainant clarified the position by email on 24th August 2022 that the subject matter of the complaint was her alleged unfair dismissal from the respondent organisation on 31st January 2022.

The complaint submitted on 1st August 2024 also alleges unfair dismissal and relates to the same dismissal date of 31st January 2022.

The respondent raised a number of preliminary points in respect of the complaints. Firstly, the respondent contends that the complainant has submitted “dual claims” in respect of her employment. The respondent argues that the complaints submitted under the Protection of Employment Act, 1977 (CA-00052261-001) and the Unfair Dismissals Act, 1977 (CA-00065141-001) relate to the same set of facts. The respondent cited the cases of Henderson and Henderson (1843), 3 Hare 100 and Cunningham v Intel Ireland Limited [2013] IEHC 207, in support of its position that the complainant may not submit two complaints relating to the same set of facts.

The respondent also raised a preliminary point in respect of the complaint submitted in accordance with the provisions of the Protection of Employment Act, 1977. The respondent’s position is that the complainant was not subject to a collective redundancy and cannot therefore ground a complaint under this piece of legislation. The respondent acknowledges that the complainant clarified her position in respect of the complaint relating to her dismissal from the respondent’s employment but argues that the complainant should not be permitted to amend her complaint at adjudication.

In respect of the dismissal itself, the respondent contends that the complaint submitted in error under the Protection of Employment Act, 1977 was submitted outside the statutory period of six months from the date of the complainant’s dismissal and the complaint is therefore out of time. The respondent cited several precedent cases in respect of the complaint being submitted out of time and that no reasons have been put forward that would justify the delay in submitting the complaints for the purposes of granting an extension of time.

In respect of the second unfair dismissal complaint referred to the WRC on 1st August 2024, the respondent argues that the complaint is manifestly out of time given that the employment relationship ended on 31st January 2022.

In respect of the issue of dual claims, the complainant’s representative argued that the complainant submitted the complaint herself in August 2022 under the incorrect legislation in error. The complainant sought to clarify the position with the WRC in respect of the issue of her dismissal within weeks of submitting her original complaint. The complainant stated that she subsequently lodged a second complaint relating to an alleged unfair dismissal IN August 2024 as an amendment to her original complaint as she remained unaware of the position at that time. The complainant alleges that there is no breach of the rule in Henderson and Henderson (1843) 3 Hare 100 as alleged by the respondent. The complainant’s representative cited several cases in support of its position that the complainant may amend the substance of the complaint she submitted on 11th August 2022.

In respect of the timing of her complaints, the complainant’s representative argued that the date of the contravention relating to the unfair dismissal was 22nd July 2022 when the complainant saw a job advertisement on Linked In, which was for the position from which she was dismissed on 31st January 2022. Accordingly, the complainant contends that the complaint is in time. If this argument is not accepted and the date of contravention is deemed to be 31st January 2022, the complainant contends that she is only 11 days out of time and on proportionality grounds an extension of time should be given, in line with the relevant case law, so the substantive complaint can be considered.

The Applicable Law

Section 8 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,

Extension of Time

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 and 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”.

Conclusions

It is common case that the complainant’s employment ended on 31st January 2022. Both complaints relate to the alleged unfair dismissal of the complainant. The complaint referred on 11th August 2022 (CA-00052261-001) was submitted outside of the six-month statutory time limit. The complainant’s representative argued that the complaint was in time in so far as the date of the contravention, as per Section 41 of the Workplace Relations Act, 2015, was on or about 22nd July 2022 when the complainant noticed a job advertisement on Linked In which the complainant alleges was identical to her role. The complainant formed the view, because of the advertisement, that her redundancy was not genuine and she had been unfairly dismissed.

On this point I find that the applicable time limit is that which begins on the date of the dismissal, in accordance with Section 8(2)(b) of the Unfair Dismissals Act, 1977 and not the date when the complainant noticed the advertisement on Linked In. The complaint submitted on 11th August 2022 was referred outside of the six-month statutory time limit beginning on the date of the dismissal.

In respect of the request to extend time, I note that the complainant became aware on or about 22nd July 2022 of the job advertisement which informed her view that she had been unfairly dismissed. The complainant did not submit her complaint to the WRC until 21 days after this date which resulted in the complaint being out of time. Had the claim been submitted in advance of the 30th July 2022, it would have been in time. Although the complaint is out of time by a short number of days only, there were no reasons put forward that both explain and offer an excuse for not referring the complaint between the 22nd July 2022 and 11th August 2022 and therefore the applicable legal test as set out in Cementation Skanska v Carroll has not been met. Accordingly, I do not grant the extension of time.

In respect of complaint application CA-00065141-001, this complaint was submitted more than 12 months from the date of the dismissal. As there is no statutory provision to extend time beyond 12 months, I find that I do not have jurisdiction to hear this complaint.

CA-00052261-001 – Unfair Dismissal

For the reasons stated above, I find that the complaint is out of time.

CA-00065141-001 – Unfair Dismissal

For the reasons stated above, I find that I do not have jurisdiction to hear this complaint as it was submitted to the WRC more than 12 months following the complainant’s dismissal.

Unfair Dismissal, complaint out of time

Precedent cases cited by the respondent:

Cementation Skanska v Tom Carroll DWT0338

O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301

Fallon and Byrne v Kelvin Gopaul PWD241

Brannigan v Equality Tribunal and County Louth VEC [2016] IESC 40

Bus Eireann v SIPTU PTD8/2024

Hanley v PBR Restaurants (t/a Fish Shack Café [2024] IEHC 662

Precedent cases cited by the complainant:

Henderson v Henderson (1843) 3 Hare 100

Morrow v Burns, Morrow and MIBI [2022] IEHC 69

Croke v Waterford Crystal Ltd [2004] 2 IR 383

Woori Bank Vkdb Ireland Ltd [2006] IEHC 156

Cementation Skanska v Carroll DWT0338