Complainant

Respondent

Anonymised Parties

A General Labourer Mr. J

A Contractor

Representatives

  Self-represented

 Cillian McGovern B.L. instructed by Barry Crushell solicitors

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-00066419-001

01/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00066419-002

01/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00066419-003

01/10/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00066419-004

01/10/2024

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

CA-00066419-005

01/10/2024

The Complainant has raised complaints seeking adjudication by the Workplace Relations Commission (“WRC”) under Section 8 of the Unfair Dismissals Act, 1977, Section 77 of the Employment Equality Act, 1998, Section 12 of the Minimum Notice & Terms of Employment Act, 1973 and Section 6 of the Payment of Wages Act, 1991.

The Complainant submits that he was employed by the Respondent from 14th of February 2023  to 15 September 2023.

These claims were submitted on 1st of October 2024 and refer to the complainant’s employment with the respondent which he submits ended on 15th of September 2023.  The cognisable six-month period in respect of claims submitted on 1st of October 2024 dates from 2nd of April 2024.

The respondent submits that these complaints are out of time as they have been filed outside of the six months timeframe and furthermore outside of the twelve-month timeframe permissible under exceptional circumstances, for the filing of complaints seeking adjudication.

The Complainant commenced employment with the Respondent on 14th of February 2023 .

 The employment of the Complainant was terminated on 15 September 2023.  The Complainant was employed as Driver and General Labourer.

These claims were submitted on 1st of October 2024 and refer to the complainant’s employment with the respondent which  ended on 15th of September 2023.  This the claims are out of time as they have been submitted over 12 months after the employment ended.

The respondent submits that these complaints are out of time as they have been filed outside of the six months timeframe and furthermore outside of the twelve months permissible under exceptional circumstances, for the filing of complaints seeking adjudication.

The Complainant submits that he was employed by the Respondent from 14th of February 2023  to 15 September 2023.

The complainant at the hearing agreed that his  employment with the respondent ended on 15 September 2023.

The complainant was advised at the hearing that the claims before the WRC had been submitted on 1st of October 2024 and were thus submitted outside of the six months timeframe permissible under the Acts.

The complainant advised the hearing that he had submitted the claims in January 2024.  The complainant advised the hearing that he had filed the claim but had not received any acknowledgement or reply.

The complainant referred to a related claim submitted by his cousin on 4th of December 2023 and stated that he had submitted his afterwards.

The complainant’s attention was drawn to the six months’ time frame and the six months extension permissible where reasonable cause can be shown which both explains and justifies the delay.

The complainant advised the hearing that he had been hospitalised in December 2023 and had been in a coma following a head injury during the time period in question and submits that this was reasonable cause for the delay in submitting his claims.

Section 41 (6) and (8) of the Workplace Relations Act, 2015 states as follows.

“(6) 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.

(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”.

These provisions are mirrored in Section 8(2) of the Unfair Dismissals Acts, 1977 wherein it states that:

“(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”.

The Act allows for an initial timeframe of six months within which a complaint must be lodged. It also allows for an extension of a further six months where a person was prevented from doing so due to reasonable cause.

The Employment Equality Acts also specifies a 6-month timeframe for submission of complaints under Section 77(5) of the Acts which in relevant part provides as follows:

77(5)(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.•(b) On application by a complainant the Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Section 77(5) (b) of the Act essentially provides that where reasonable cause is shown for a delay in presenting a claim under the Act within the six-month time limit provided for at section 77(5)(a), that time period may be extended to a period not exceeding 12 months.

The test for determining if an extension should be granted for reasonable cause was set out by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT 38/2003 as follows:

 “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, which had those circumstances not been present he/she would have initiated the claim in time.”

In the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It 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 complaint 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”.

The complainant in this case agrees that his employment ended on 15th of September 2023.   The date these claims were lodged with the WRC was 1st of October 2024,  over 12 months later.

The Respondent advised the hearing that the claims were submitted outside of the 6 months’ time period within which an extension of time could be sought and outside of the 12 months allowable for such extension.  

The respondent submitted that the WRC does not have jurisdiction to consider matters referred outside of the 12-month period.

The complainant at the hearing agreed that his employment with the respondent ended on 15th of September 2023.

The complainant advised the hearing that he had initially submitted the claims in January 2024 but had not received any acknowledgement or reply.  The complainant advised the hearing that he submitted the claims again in October 2024.  The complainant could not produce any evidence that he had submitted the claims 9 months earlier i.e. in January 2024 and confirmed that he had not received any reply or acknowledgement  in this regard.

I am thus satisfied that the claims before me are claims submitted by the within complainant on 1st of October 2024.

The complainant referred to a related claim submitted by his cousin on 4th of December 2023  and stated that he had submitted his claim shortly afterwards.

The complainant’s attention was drawn to the six months’ time frame for submission of claims under the various pieces of legislation and the six months extension permissible where reasonable cause can be shown which both explains and justifies the delay.

The complainant advised the hearing that he had been hospitalised on the 9th of  December 2023 and had been in a coma for 3 to 4 days  after he received a blow to the head from an axe.    The complainant submits that it took him a number of months to recover from this head injury.  The complainant submits that this was reasonable cause for the delay in submitting his claims.

The respondent in reply to the complainant’s application for an extension submitted that the complainant’s employment had been terminated in September 2023 and thus he had three months within which to submit his claim before sustaining an injury in December 2023.  

In addition, the respondent pointed to the fact that the complainant had claimed to have submitted his claims in January 2024 and so this leaves a period of one month from December to January during which he was prevented due to injury/incapacity from submitting his claim.  The six-month time limit for submission of the claims did not expire until 14th of March 2024.    The respondent stated that the complainant had ample time outside of this period of alleged incapacity and within the six months in which to submit his complaints.  The complainant could have submitted his claims between September and December 2023 or after his period of incapacity at from January 2024 any time up to 14th of March 2024.

In considering the reasons advanced by the complaint, I must be satisfied that they both explain and justify his delay in referring the within complaint which should have been submitted by 14th of March 2024 in order to comply with the 6-month time limit and by 14th of September 2024 to fall within the 12 months allowable where reasonable cause is shown for the delay.

Having considered the Complainants application for an extension of the cognisable period for the purposes of the present complaint, along with the submissions made and the evidence adduced in respect of the application for the extension of the time limits from 6 months to 12 months I find that the same do not explain or excuse the length of delay in referring the same.   Having regard to the foregoing, and the authorities cited above, I find that the Complainant has not established “reasonable cause” as required by the Act.   

I find that as the complaints have  been referred to the WRC in excess of 12 months from the date of alleged contravention, the claims are  statute-barred and accordingly, I do not have jurisdiction to investigate this complaint.   

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

CA-00066419-001

01/10/2024

I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, it is statute-barred and accordingly, I do not have jurisdiction to investigate this complaint.    Accordingly, I declare this claim to be not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00066419-002

01/10/2024

I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, it is statute-barred and accordingly, I do not have jurisdiction to investigate this complaint.   

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00066419-003

01/10/2024

I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, it is statute-barred and accordingly, I do not have jurisdiction to investigate this complaint.   

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00066419-004

01/10/2024

I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, it is statute-barred and accordingly, I do not have jurisdiction to investigate this complaint.   

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

CA-00066419-005

01/10/2024

I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, it is statute-barred and accordingly, I do not have jurisdiction to investigate this complaint.