Complainant

Respondent

Parties

Albazi Ibrahim  Almaznaee

Servicenow Ireland Limitied

Representatives

Self

Catherine Hayes, Lewis Silkin Ireland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00065937-001

11/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00065937-003

11/09/2024

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

CA-00065937-004

11/09/2024

The Complainant was employed by the Respondent as a Digital Sales Representative from 01/12/2022 until 08/06/2023.  His gross monthly pay was €6,834 and he worked 40 hours per week.

The Complainant submitted three complaint to the Workplace Relations Commission on 11/09/2023:

(i)                  seeking adjudication by the WRC under Schedule 2 of the Protected Disclosures Act, 2014;

(ii)                (ii) a complaint of penalisation seeking adjudication by the WRC under Section 7 of the Terms of Employment (Information) Act, 1994 and

(iii)               (iii) a complaint of unfair dismissal seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977.

The Respondent denies all claims and submits that the WRC does not have jurisdiction to hear these complaints.   The Respondent also submits that a further submission of ongoing penalisation cannot be added to his complaint form as it is outside the cognisable period.

At the hearing the Adjudication Officer confirmed that given the submissions in relation to jurisdiction this matter would have to be dealt with first.  Both parties made further submissions in relation to this.

The Complainant was employed as Senior Digital Sales Representative by the Respondent from 01/12/2022 until he was dismissed on 08/06/2023.  The Complainant submitted his complaints to the WRC on 11/09/2024.  The Complainant submits that his dismissal was linked to what he believes was a protected disclosure in relation to certain practices in the company which he considered to be unethical and in violation of its internal policies and applicable laws.

At the hearing the Complainant acknowledged that his complaints were out of time.  He advanced three reasons for this which he believes explained and excused the delay in submitting his complaints.  Firstly, he engaged the services of a solicitor and he believes that he received misleading advice.  This advice was that he had no strong grounds and the result of this was that he suffered in terms of his financial situation and mental and social well-being.  The Complainant also submitted that as a result of this he was homeless and he was trying to sort matters out.  The Complainant believes that the poor advice from a solicitor, medical reasons and homelessness are valid reasons.   None of these were his own fault and he submits that the WRC should decide to hear his complaints.

The Complainant also provided a supplementary submission in which he sought to amend the particulars outlined on his complaint form.  He submits that these acts of on-going penalisation are helpful in understanding the pattern and damage caused to him by the Respondent’s actions.  All of this is a direct result of his protected disclosure and he is seeking a fair process in order to outline the details of his complaints.  At the hearing the Complainant confirmed that he wished to prioritise this complaint under the Protected Disclosures Act.  The Complainant also confirmed his understanding that a decision in relation to the jurisdiction would determine if his complaints were out of time or if a further hearing would be rescheduled.

IT was submitted on behalf of the Respondent that the Complainant’s employment ended on 08/06/2023 as he was unsuccessful during his probation period.  The Complainant lodged his three complaints fifteen months after his employment ended.  The Respondent’s representative had previously advised the WRC that an Adjudication Officer has no power to extend the time limit beyond 12 months and that the complaints should be considered by way of written submissions and dismissed on the basis that they were out of time.

The Respondent denies the allegations which are made by the Complainant.  The Respondent also submits that the Complainant’s application to amend his WRC complaint form to include new alleged acts of wrongdoing which he claims took place after he lodged his compliant should be denied.   The Respondent relies on the decision of Padraic O’Toole v Minister for Agriculture, Food and Marine (ADJ-000545437) which held that the Adjudication Officer “could only consider evidence on the allegations of penalisation in the cognisable period …”  In a similar case the Labour Court in Minister for Jobs Enterprise & Innovation v George McLoughlin (PDD185) held that the cognisable period was the six months prior to the submission of the complaint and allegations of penalisation after the date of submission were not admissible.

The Respondent requests that these complaints should be dismissed on the basis that they are statute-barred and the WRC has no jurisdiction to hear his complaints. 

The Respondent has raised a preliminary point in relation to the jurisdiction of the WRC to hear this complaint.   Section 41(6) of the Workplace Relations Act (2015) states:

“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”.

Section 41(8) of the Workplace Relations Act (2015) also states:

“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 facts of this case are that the Complainant was dismissed on 08/06/2023 and submitted he complaint to the WRC on 11/09/2024.  That is a period of one year, three months and three days.

At the hearing the Complainant stated that although his complaints are not out of time he should be granted a hearing.  He relies on the three points noted above to explain and justify his delay in submitting his complaints to the WRC.  It appears that the Complainant does not accept that Section 41(6) of the Workplace Relations Act requires a Complainant to set out a specific contravention of act of penalisation that occurred in the six-month period before lodging a claim, to ground a claim under the Act.

In relation to an extension of time the Labour Court in determination DWT0338,  Cementation Skanska (formerly Kvaerner Cementation) v Carroll the test for deciding if an extension of time should be granted for reasonable cause was outlined:

“Where and Adjudication Officer decides to consider a request for extension of time the onus is on the Complainant to satisfy the Adjudicator:

i.                      Firstly, that the reason(s) relied upon both explain the delay and provide a justifiable excuse for same;

ii.                   Secondly, that a causal connection exists between the reason proffered and the failure to apply in time;

iii.                 Thirdly, that as a matter of probability, the complaint would have been presented in time but for the intervention of the factor(s) proposed as having directly caused delay in lodgement of complaint”.

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 has been dealing with this matter for some time.  However, in the circumstances of this case I cannot find that he has satisfied the test for establishing reasonable cause as required under Section 8(2) (b) of the 1977 Act. The Complainant has sought to explain the reasons for the late submission of his complaints I am a satisfied that the Complainant’s three reasons are not 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.

At the hearing the Complainant was advised that Adjudication Officers of the WRC are creatures of statute and can only consider complaints submitted within the statutory time frame provided by relevant legislation.  A failure to present a complaint on time dislodges an Adjudication Officer of jurisdiction to hear the claim.

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.

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

Time frame.  Reasonable cause.