Complainant

Respondent

Parties

Eramah  Soobanah

Tractamotors Blanchardstown Limited

Representatives

  In person

 Nick Crawford

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-00067560-001

20/11/2024

The complainant was employed by the respondent as a deli assistant from 18th June 2017 until her resignation on 3rd May 2024. The complaint of alleged constructive unfair dismissal was lodged to the Workplace Relations Commission (WRC) on 20th November 2024. Prior to the hearing date, the parties exchanged significant levels of correspondence in relation to the time limits applicable to the referral of the complaint and the fact that it was submitted to the WRC outside of the six-month statutory time limit. The respondent is seeking that the Adjudication Officer dismiss the complaint. The complainant is seeking an extension of time and for her complaint to be heard.

Correct respondent

The respondent principal stated at the adjudication hearing that the complaint had been submitted against him in a personal capacity as opposed to the legal entity that employed the complainant. The respondent principal clarified the correct name of the respondent, and this was accepted by the complainant. The correct respondent’s name is reflected in this decision.

The respondent stated that the complaint is out of time. The respondent’s position is that the complainant resigned from her employment with effect from 3rd May 2024 and did not lodge her complaint with the WRC until 20th November 2024.

From the exchange of correspondence between the parties, the respondent is aware of the reasons put forward by the complainant in seeking to extend the statutory time limit. The respondent states that the reasons put forward do not satisfy the appropriate legal test for granting an extension of time.

The respondent further stated that the complainant commenced in new employment shortly after her resignation in May 2024 and only lodged her complaint against the respondent in November 2024 when she was notified that her new employment would end on 2nd December 2024.

The respondent is seeking that the complaint be dismissed.

The complainant is seeking an extension of time. The complainant acknowledges that the complaint was submitted outside of the statutory six-month time limit. The reasons put forward by the complainant in seeking an extension of time are that she was going through a very bad time in her personal life which required her to move home. The complainant also stated that she was unaware at that point in time that there was a six-month statutory time limit in relation to referring complaints to the WRC.

The Applicable Law

Time Limits

Section 8(2)(b) 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 request

The complainant sought an extension of time in relation to her complaint. The reasons the complainant cited were that she was experiencing difficulties in her personal life following her resignation and that she was also unaware of the time limit with respect to lodging complaints to the WRC.

Reasonable cause

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”.

Conclusion

I have considered the complainant’s application for an extension of time. I note that the complainant commenced new employment in May 2024 and was employed in her new position until 2nd December 2024. While the complainant is out of time by a short number of weeks only, I do not accept the reasons put forward by her in relation to the delay in submitting her complaint. In my view, the complainant was working from May 2024 onwards and in the six months that followed, if she felt she had been subject to a constructive unfair dismissal, she could have submitted a complaint to the WRC within the statutory time limit.  I find that experiencing personal difficulties as well as being unaware of the time limits for the referral of a complaint to the WRC do not offer a justifiable explanation and excuse for the late referral of the complaint.  As the complaint has not satisfied the applicable test set out in Cementation Skanska v Carroll, I do not grant the extension of time. Accordingly, I find that the complaint is out of time.

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

Complaint out of time