Complainant

Respondent

Parties

Scott  Henderson

Whitbread Premier Inn Hotels

Representatives

Self

Hugh Hegarty,  Peninsula Business Services Ireland

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-00069082-001

05/02/2025

The Complainant was recruited as a Hotel Manager with the Respondent on a salary of €51,101.  He commenced employment on 26/08/2022 and submitted his resignation on 29/07/2024.  He submitted his complaint to the WRC on 05/02/2025.

He is claiming that he was constructively dismissed by the Respondent.  The Respondent denies the claim and submits that the claim is also out of time and this matter needs to be addressed as a preliminary point.

The Complainant attended the hearing and provided a written submission setting out the chronology of events that led to his resignation.  The Complainant gave evidence on oath.  He accepted that his complaint was submitted late.  He explained that he was diagnosed with a psychiatric illness which he alleges was caused by the workplace.  After he left the role, he had to return to Scotland and was rendered homeless as a result.  He understood that the date of resignation was the date it was accepted by the Respondent which was 02/08/2024 and in that case his timeline for submission of a complaint was 02/02/2025.  The Complainant also stated that when he initially tried to submit his complaint there were issues with the WRC website.  The Complainant confirmed that the diagnoses he was referring to was the assessment by the Respondent’s Occupational Health physician in August 2024.  He did not have any recent certification from his own GP or consultant. 

Mr Hugh Hegarty made a submission on behalf of the Respondent.  He noted that the Complainant stated that he made attempts to submit his complaint and therefore it is clear that he was aware of the time limits.  The Complainant has also confirmed that he was aware that his complaint was out of time.  The Complainant has not shown reasonable cause for the delay.

It was submitted on behalf of the Respondent that Section 8(2) of the Unfair Dismissals Act, 1977 states that a claim for redress under the Act should be submitted “within the period of 6 months beginning on the date of the relevant dismissal” and this can be extended to a 12-month period if the delay was prevented due to “reasonable cause”. 

The Respondent also refers to the decision in Ryanair DAC Ryanair and Jaroslav Strand UD/18/149 which held that “The claim was referred out of time, and if the substantive complaint is to be allowed to proceed to hearing, the Complainant must first demonstrate to the satisfaction of the Court that there was reasonable cause which prevented him giving notice of complaint within time”.    In addition, the Respondent also refers to the Supreme Court decision on time limits, County Louth VEC v Equality Tribunal [2016] ISEC 40 which held”

“If a complaint is out of time and thus fails to satisfy a condition precedent, and remains so found after inquiry, then it cannot be said to have been “lawfully referred” to the Tribunal, such that it may properly be investigated for redress purposes…”

It is the Respondent’s submission that the complaint was lodged on 05/02/2025 alleging that he was constructively dismissed on 29/08/2024 and the deadline for submission was 29/01/2025.  The Complainant has not shown reasonable cause, including up to date medical certification and follow up emails with the WRC to indicate that these were contributory factors to the delay.  As this is a fundamental preliminary point it much be decided before any evidence is heard in relation to the substantive case.

CA-00069082-001:  This is a complaint seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1977 arising from his constructive dismissal on 29/07/2024.  It is not disputed that the Complainant was employed as a hotel manager from 26/08/2022 until his resignation on 29/07/2024.  It is also not disputed that the complaint form was submitted to the WRC on 05/02/2025

The Law:

Section 1 of the Unfair Dismissals Act 1977, as amended, in relevant part, states as follows:

(1)             “In this Act –

“dismissal” in relation to an employee means – (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal. 

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the Complainant to demonstrate that his resignation on 29/07/2024 was justified.  However, there are two preliminary points which must be considered in the first instance.  The first is in relation to the date of dismissal.  The Complainant understood that the date of dismissal was the date it was accepted by the Respondent.  The decision of the EAT in Walsh v Health Service Executive (UD 501/2007) provides a definitive determination that the date of dismissal in a constructive dismissal case is the actual date that a Complainant submits their resignation. This dismissal was initiated by the Complainant who submitted his resignation on 29/07/2024 and noted that it was with immediate effect.  This is the date of dismissal and there was no ambiguity in relation to the Complainant’s intention with effect from that that.

The second issue is in relation to the time limits for submitting a complaint.  The well-established case in relation to “reasonable cause” was fully considered in Cementation Skanska v Carroll, DWT 38/2003 which was opened at the hearing: 

“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.”

The Respondent also opened the decision of Galway and Roscommon ETC v Josephine Kenny (UDD1624) which found:

“The Court cannot accept that a miscalculation of the due date amounts to “exceptional circumstances” as defined by Section 44(4) of the Workplace Relations Act, 2015.  The miscalculation of the deadline is akin to a misinterpretation of the statutory provisions.  The Court is satisfied that the legal principle, ignorantia juris non excusat (ignorance of the law excuses not) applies in this case and therefore the miscalculation cannot be accepted as excusing a failure to comply with a statutory time limit”. 

The Complainant also submitted that he was diagnosed with a psychiatric illness.  In response to questions from the Adjudication Officer he confirmed that he based this on the outcome of a telephone assessment he had with the Respondent’s Occupational Health Physician on 02/08/2025.  The Complainant confirmed that he had no medical evidence from his own GP or other medical practitioner since that date.

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 Acts 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.

As the Complainant was not represented the Adjudication Officer explained the relevance of the preliminary points raised by the Respondent.  The Complainant also confirmed that he understood that a decision would be made by the Adjudication Officer in relation to the preliminary point in relation to timeframe and this would determine the position in relation to hearing the substantive matter.

As this preliminary point goes to the jurisdiction of the Adjudication Officer, I have decided to deal with it as a preliminary issue.  I have taken cognisance of the decision of Mr Justice Charleton in Adigun v The Equality Tribunal [2015] IESC 19 at paragraph 15 wherein he stated the following:

“Even apart from the subsection quoted above, it is within the scope of fair procedures before any judicial or quasi-judicial body for an issue to be isolated and tried in advance of the main hearing provided that can be done fairly…  Hence, even apart from legislative provisions, it would make sense that once the issue is raised, it should be determined in advance of what was likely to be a substantive hearing.  The resources of the courts and tribunals are limited.  It is a pointless exercise to engage in a trial of fact over several days when whether or not the resolution of such facts may yield any redress to the claimant looms is clearly the first hurdle that he or she must cross.  That can be fairly isolated and tried in advance”.

In view of the foregoing, I find that this claim was referred outside of the time limit set out in section 8(2) of the 1977 Act and I am not satisfied that the failure to refer the claim within time was due to reasonable cause.

Given the findings above I have concluded that I do not have jurisdiction to hear these complaints.

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

Time limits.  Preliminary point.