Complainant

Respondent

Parties

Bernadette  Tansey

National Gallery of Ireland.

Representatives

Self- represented.

Head of HR and Employee Relations,

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-00068386-001

01/01/2025

The complainant has submitted a complaint that she was constructively dismissed on 16/06/2024.

 She commenced employment on 26/6/2017 as an Attendant Grade Security Staff (AGSS) on a fixed term contract. Subsequently on 18 September 2017, she was appointed on a permanent contract until her resignation.

Her fortnightly pay was €1213.

She submitted her complaint to the WRC on 1/1/2025

The complainant was dismissed on 16/6/2025. The complaint was submitted to the WRC 1/1/2025.

Notwithstanding the respondent’s contention that the complainant resigned and was not dismissed, the respondent, when asked by the adjudicator for their response to the complainant’s failure to comply with the statutory time limits, made no objection to the admission of the complaint, and stated that they would accept the decision of the adjudicator.

The complainant was dismissed on 16/6/2025. The complaint was submitted on the 1/1/2025.

Evidence of complainant given under oath.

The complainant asked for her complaint to be considered as the reasons for the delay in submitting her complaint meet the reasonable cause proviso as set out in section 8 (2) (b) of the Act.

Her mental health and wellbeing prevented her from revisiting the matters underlying her complaint, namely, her significant mental distress at the failure of the respondent to deal appropriately with her concerns about the behaviour of colleagues.  This prevented the complainant from submitting her complaint within the statutory timeframe.

 The complainant advised when questioned that she had engaged in counselling from August to December 2024.

Cross examination of the complainant.

The complaint confirmed that she had been seeking positions for a few months prior to leaving the respondent’s employment.  The straw that broke the camel’s back was the lift incident in February 2024 when she was suspended due to a complaint having been lodged against her by a colleague. The complaint was not upheld.

The complainant confirmed that she had taken up a new position on 17/6/2024 on a lower salary.

Before I consider if a contravention of section 6(1) of the Unfair Dismissals Act, 1977 occurred, I must consider the jurisdictional issue of compliance with the statutory time limits.

 I am obliged to determine if I have jurisdiction to hear these complaints.

The matter of determining a preliminary issue such as statutory time limits in advance of addressing the substantive complaints has been dealt with in several cases.

In Mary Sheehy v. Most Reverend James Moriarty [UD1264/2008] the Tribunal held as follows:

‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the claims were not instituted within the time periods set out in the legislation”.

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA101], the Labour Court issued a preliminary decision.  The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J in B.T.F. v. Director of Public Prosecutions 2 ILRM 367.   In the latter case Hardiman J held as follows

 "It is often a difficult and delicate decision as to whether to try a particular issue as a   preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear".

The same conclusions were reached in Donal Gillespie v. Donegal Meat Processers [UD/20/135 and in Bus Eireann v. SIPTU[PTD8/2004].

These authorities point to the requirement to determine the jurisdictional issue of compliance with the statutory limits in the first instance.

Statutory Time limits.

Section 8 (2) of the Act of 1977, as amended, states

“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,”

The complaint was submitted 2 weeks after the statutory limit had expired, that date being the 15/12/2024. The adjudicator can extend time in accordance with section 8(2) (b) where reasonable cause for same exists.

The established test for identifying if reasonable cause exists to extend time up to 12 Months is set out in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 0388.There, the Labour Court determined as follows:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complainant would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

Applying this test to the circumstances of the instant case, it is necessary to establish if the reasonable cause provisions found in section 8 (2) of the Act of 1977, as amended, could operate in the complainant’s favour.

There are problems with the complainant’s explanation.

Her evidence of stress and concern for her well-being is not supported by medical evidence for the period 16/6/2024-15/12/2024, the period during which the complaint should have been submitted.

Her evidence at the hearing was that she had commenced in another job on 17/6 /2024. She confirmed when asked by the adjudicator that she had not needed to take any sick leave following her commencement in this position.  She was fully functioning as an employee and gave no evidence that her experience with the respondent impeded her in the performance of her role during the statutory timeframe which was the 1/6/2024-15/12/2024.

The test set out in Skanska and followed in Salesforce.com –v- Leech EDA1615 requires that the factors which explain the delay must also justify the delay. Based on the evidence and given that she was a high functioning employee in her new position, I am unable to accept that the reasons advanced justify the delay.

The fractious nature of the respondent’s workplace and her unpleasant experiences do not relieve the complainant of the obligation to comply with the statutory time limits.

 I am unable to accept that I can exercise section 8(2) of the Act in her favour.

I find that I do not have jurisdiction to hear this complaint.

I decide that I do not have jurisdiction to hear this complaint.

Non- compliance with statutory time limits.