Complainant

Respondent

Parties

Thiago  Alves

SSE Renewables Holdings Ltd

Representatives

Self

Dajana Sinik IBEC

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-00070794-001

13/04/2025

The Complainant commenced employment with the respondent on 16/05/2022 as a Customer Service Agent.  He was paid a salary of 31,000 and worked 37..5 hours per week.  He was dismissed on 26/09/2024.  He submitted his complaint to the WRC on 14/04/2025.  The respondent denies the claim and submits that the complaint is out of time.

The Complainant made a preliminary application to have the hearing heard in private and to have the decision anonymised.  He stated that the nature of his ongoing criminal court case should be the subject of strict anonymity and reporting restrictions in order to ensure that he will have a fair trial.  He he believes that if the hearing proceeded in public “this would cause irreparable damage to my ongoing defence and my right to a fair trial”.  The Complainant also submitted that he wanted to ensure that the WRC process “does not inadvertently compromise the protections already granted to me by the criminal courts”. 

The Complainant also disputed the Respondent’s submission that his complaint was submitted outside the time limits.  He stated that while the respondent submits that he was dismissed on 26/09/2024 he continued to receive communication from the Respondent’s HR department regarding an overpayment.  He was also instructed to deal with his former line manager.  The Complainant submits that if the respondent is in a position to issue directives to him and they also refused to finalise his administrative queries the employment relationship “remained live or disputed until that point”.  It is the Complainant’s position that his date of dismissal was 14/10/2024 and therefore his complaint is submitted within the time limits. 

It is also the Complainant’s position that the respondent delayed responding to his Data Subject Access Request (DSAR) and this contributed to his delay in submitting his complaint.

In his closing submission the Complainant stated that his  position is that the delay in submitting his complaint was due to the delay in receiving “essential evidence” from the respondent along with “the significant pressure of concurrent criminal litigation”.

The Complainant 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.

The respondent is a leading energy company in Ireland and the UK.  The Complainant worked as a Customer Service Agent from 16/05/2022 until his contract was terminated by way of dismissal on 22/09/2024.

It was submitted on behalf of the respondent that the Complainant did not outline any special circumstances which would merit the holding of a private hearing and an anonymised decision.  The details of the Complainant’s charges and identity are already in the public domain.  There can be no prejudice to the complaint by virtue of the WRC hearing being held in public.

It was submitted on behalf of the respondent that the Complainant was dismissed on 26/09/2024 and the letter of dismissal confirms that his dismissal was with immediate effect.  He filed his complaint on 14/04/2025 and the onus is on the Complainant to explain the delay and provide a valid justification for failing to present the claim within the statutory time frame.  The respondent submits that the Complainant has failed to do so.  Section 41 (6) of the Workplace Relations Act, 2015 provides that “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”.

The respondent rejects the Complainant’s view that it contributed to his delay in submitting his complaint due any delay in the DSAR response.  He received this response in January 2025 but did not submit his complaint to the WRC until 14/04/2025. 

In response to a question from the Adjudication Officer the Complainant confirmed that he did not receive any payment from the respondent after 26/09/2024 other than that which was accrued prior to his dismissal.

The Complainant made a preliminary application to have the hearing held in private and the decision anonymised.  The Complainant outlined that he is facing charges in the criminal courts and he believes that a public WRC hearing would somehow be prejudicial to his case and his right to a fair trial. 

Having considered the matter it was explained to the Complainant at the hearing that there is no connection between the WRC and a trial in the criminal courts.  In addition the role of an adjudication officer is not to establish the guilt or innocence of the Complainant in relation to the events which occurred.    The function of the Adjudicator is to assess what a reasonable employer, in the Respondent’s position and circumstances, might have done. 

For the reasons outlined at the hearing I decided that the hearing would be held in public and that the decision would not be anonymised.

The Respondent has raised a preliminary point in relation to the jurisdiction of the WRC to hear this complaint.   Section 41(6) of the Workplace Relations Act (2015) states:

“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”.

Section 41(8) of the Workplace Relations Act (2015) also states:

“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”.

The facts of this case are that the Complainant was dismissed on 26/09/2024 and submitted he complaint to the WRC on 14/04/2025.  That is a period of six months and twenty days.

At the hearing the Complainant stated that although his complaints are technically out of time he should be granted a hearing.  He relies on the three points to explain and justify his delay in submitting his complaints to the WRC.

1.       His employment relationship with the respondent continued after his dismissal on 26/09/2024 due to the fact that he was under the direction of the respondent in relation to matters of an administrative nature.

2.       The respondent delayed in responding to his DSAR request and this denied him access to information relevant to his complaint

3.       The Complainant is currently the subject of proceedings in the criminal courts and he submits that “the logistical and mental requirements of preparing a legal defence for a criminal matter constituted reasonable cause for the delay in filing”.

It appears that the Complainant does not accept that Section 41(6) of the Workplace Relations Act requires a Complainant to set out a specific contravention or act of penalisation that occurred in the six-month period before lodging a claim, to ground a claim under the Act.

In relation to an extension of time the Labour Court in determination DWT0338,Cementation Skanska (formerly Kvaerner Cementation) v Carroll the test for deciding if an extension of time should be granted for reasonable cause was outlined:

“Where and Adjudication Officer decides to consider a request for extension of time the onus is on the Complainant to satisfy the Adjudicator:

i.                      Firstly, that the reason(s) relied upon both explain the delay and provide a justifiable excuse for same;

ii.                   Secondly, that a causal connection exists between the reason proffered and the failure to apply in time;

iii.                 Thirdly, that as a matter of probability, the complaint would have been presented in time but for the intervention of the factor(s) proposed as having directly caused delay in lodgement of complaint”.

The onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of reasonable cause. 

I appreciate that the Complainant has been dealing with this matter and also the matter before the criminal courts for some time.  However, in the circumstances of this case I cannot find that he has satisfied the test for establishing reasonable cause as required under Section 8(2) (b) of the 1977 Act.  The Complainant has sought to explain the reasons for the late submission of his complaints I am a satisfied that the Complainant’s three reasons are not cogent reasons which would determine that there was reasonable cause for the delay in submitting the complaints. 

At the hearing the Complainant was advised that Adjudication Officers of the WRC are creatures of statute and can only consider complaints submitted within the statutory time frame provided by relevant legislation.  A failure to present a complaint on time dislodges an Adjudication Officer of jurisdiction to hear the claim.

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 this complaint.

CA-00070794-001:  For the reasons outlined above have decided that I do not have jurisdiction to hear this complaint.

Time limit.  Request for anonymisation.