Adjudication Reference: ADJ-00052828

Parties:

	Complainant	Respondent
Parties	Michael Kelleher	Petrogas Limited. t/a Applegreen

	Complainant	Respondent
Anonymised Parties

Representatives

David O’Riordain, Sherwin O'Riordan

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00064579-001	04/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00064579-002	04/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00064579-003	04/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00064579-004	04/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00064579-005	04/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00064579-006	04/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00064579-007	04/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998	CA-00064579-008	04/07/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00064579-009	04/07/2024

Date of Adjudication Hearing: 05/12/2024

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint made. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will consider any and all documentary or other evidence which may be tendered in the course of the hearing.

The Complainant’s complaint is that he was Constructively Dismissed which means that the onus is on the Complainant to demonstrate that his Employer’s conduct or behaviour was such that he had no reasonable alternative other than to tender his resignation. The burden of proof shifts to the Complainant in a situation of Constructive Dismissal. The Complainant must demonstrate that he was forced to terminate his Contract of Employment in circumstances which, because of the conduct of the Employer, the Employee was entitled to terminate his employment or it was reasonable for the Employee to terminate her employment (as defined in Section 1 of the Unfair Dismissals Act 1997).

The Complainant has also brought a number of other matters before the WRC at this time. The Complainant has brought five complaints seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994. The Complainant has brought one complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998. Lastly, the Complainant has brought a Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

Before we could get into the substantive issues, the Respondent requested that a preliminary issue concerning applicable time limits be addressed.

The Adjudication Officer must be aware of applicable time limits and in this regard, the Workplace Relations Act specifies at Section 41 (6) that (subject to s.s.8) an Adjudication Officer shall not entertain a complaint referred to said Adjudication Officer after the expiration of the period of six months beginning on the date of the contravention to which the Complaint relates.

Section 41 (8) specifies that the Adjudication Officer may entertain a Complaint or dispute to which section 41 applies after the expiration of the six month period referred to in ss. (6) and (7) – though not later than a further six months after the initial expiration as the case may be - if the Adjudication Officer is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.

I am bound to follow the authorities and in particular IO reference the case of Servier Ireland Industries Limited V Juanita Wilkinson EDA 1713 wherein the Labour Court held:

“It is clear form 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 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 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, where 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.”

I am therefore acceding to the Respondent argument that I do not have jurisdiction to hear the within complaints in circumstances where the complaints have been brought out of time and the Complainant has been manifestly unable to provide evidence that her failure to issue the complaint from in the first six months was due to reasonable cause.

Background:

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 4th of July 2024.

Summary of Complainant’s Case:

The Complainant was not represented and made his own case. At the outset the Complainant agreed to make an Affirmation to tell the truth. I was provided with some paperwork in support of the Complainant’s case. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form.

The Complainant alleges that he Unfairly dismissed by reason of Constructive Dismissal. The Complainant indicated that his Dismissal happened on the 1st of June 2023. The Complainant has made additional complaints under other pieces of legislation, and all relate to issues he had with his Employer during the course of eh employment.

The Complainant has also claimed that he was made Redundant.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Summary of Respondent’s Case:

The Respondent had representation at this hearing. A number of witnesses were in attendance to give evidence on behalf of the employer should same be required. The Respondent provided me with a written submission dated 4th December 2024. This dwelt on the issue of a preliminary issue as to timing.

The Respondent rejects that there has been a Constructive Dismissal and does not accept any contravention of Employment Rights as protected by statute.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

Findings and Conclusions:

I have carefully listened to the issues raised in this matter. As is correct and proper in cases of Constructive Dismissal, I invited the Complainant to make his case. The Complainant outlined the fact that he had been out on work related stress for a considerable period of time, and he was submitting sick certificates as was company policy.

The Complainant wanted to end the obligation placed upon him as the cost of submitting sick certs was mounting. He suggested to his Employer that they “should conclude our business”. He says he wanted their relationship to end in an agreeable way but also that he felt it was for him to affect a conclusion. He disputes it was a resignation though it is noted that the Employer identified that the Complainant was leaving the place of work.

One way or another the rules around bringing a claim before the WRC are as set out above. The Complainant had six months to lodge his claim. If he could establish reasonable cause I might have been able to extend that to twelve months. However, the Complainant brought his complaint to the attention of the WRC some thirteen months after the termination of the employment. I do not therefore have the jurisdiction to entertain this case. The issue raised under IR is obsolete where the Complainant is so long gone form the employment.

The same is true for every one of the other complaints brought.

The only complaint that does not have a six-month limitation is the claim under the Redundancy Payments Acts. However, on the facts, this is quite clearly not a Redundancy case and therefore there is no entitlement to a Redundancy Payment.

All of the Complainant’s claims fail.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.