Complainant

Respondent

Parties

Adrian  Sinnott

Circuit Electric, Wexford

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00072998-001

01/07/2025

The complainant made the following submission.  He supplemented this and gave oral evidence on affirmation, confirming the contents of the submission.

He was employed as a Site Foreman with Circuit Electric from March 2016 until August 2023, when his employment came to an end as a result of the employer failing to pay wages owed. In August 2023, his employment effectively ceased when he was no longer paid for work completed. He did not receive his final two weeks’ wages.

He  was not given any formal notice of termination, nor was he provided with any documentation confirming the status of his employment.

In the absence of payment for work carried out, he was left with no option but to cease attending work, as it was not financially viable to continue under those circumstances. Following this, he received no communication from his employer regarding his employment status, outstanding wages, or any redundancy entitlement.

As a site foreman he initially picked up clues as to what was happening from wholesaler suppliers who supplied the respondent and sub-contractors. Wholesalers began to refuse to supply him with materials due to outstanding accounts. Then, sub-contractors stopped attending at the sites due to not having been paid for at least a month.

Eventually the respondent stopped trading.

The company had no HR department or administrative support structure. His sole point of contact was the employer, Thomas Clarke. Despite repeated attempts to contact him, he could not do so. Other employees were similarly affected by non-payment of wages, confirming that this was not an isolated issue.

At that time, a number of other employees had already ceased working due to non-payment of wages. He  remained working until it became clear that payment was not forthcoming, which reflects the wider difficulties within the company.  In the end, the complainant himself was not paid for three weeks.

At the time his employment ended, he did not understand that he was required to initiate the redundancy claim or that strict time limits applied. In his previous experience of being made redundant on two occasions, the entire process was handled by the employer, and he was paid his redundancy without needing to take any independent action. It was his understanding that this was the employer’s responsibility.

As a result of that experience, he believed that his situation would be dealt with in a similar manner and that the process would take time, as it had done previously. This contributed directly to the delay in pursuing this claim.

As time passed and no payment or communication was forthcoming, he became  concerned and began making enquiries with a view to seeking assistance.  he contacted a financial advisor initially with the intention of obtaining advice on how to pursue the matter. It was at that point that he was made aware of the appropriate process and the need to contact the WRC, and he did so on the same day, submitting his claim immediately.

 The delay in bringing this claim was not due to neglect or disregard, but arose from a combination of a complete lack of communication from his employer, the absence of any formal termination or redundancy process, and his genuine and reasonable understanding, based on past experience, that redundancy matters are processed over time by the employer.

In the circumstances, he believes it is equitable and appropriate, and that reasonable cause exists, for his claim to be accepted outside the usual time limits.

The respondent did not attend the hearing.

The situation giving rise to the complaint is as set out above. The evidence of the complainant shows a clear pattern of non-payment of suppliers, sub-contractors and employees before the respondent eventually ceased trading, resulting in the termination of the complainant’s employment.

This happened without any communication or consultation with those affected, indeed the opposite. The complainant’s evidence was that, despite his best efforts, the respondent owner, Mr Tomas Clarke would not even engage with him  and that these efforts contributed to a delay in submitting the complaint.

Therefore, a preliminary issue arises in relation to the time limits for making a complaint.

In the case of redundancy these are more generous than the normal six months, extendable to twelve for ‘reasonable cause’. Where a redundancy is involved the time limits are twice those normally applicable.

However the phrase ‘reasonable cause’ has very specific meaning in this context.

The test to be applied in extension of time applications under the Acts, is that formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and in other cases and may be summarised as the ‘explain and excuse’ test.

“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 Labour Court subsequently endorsed this in Salesforce.com v Leech EDA1615 held as follows:

            “It is 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 the complaint 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, while 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. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said in Department of Finance v IMPACT. [2005] E.L.R. 6.  that it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

The complainant explained why he delayed in making the complaint to the WRC but unfortunately it does not meet the strict criteria set out in the case law above.

As noted the reason for the delay must both explain and excuse the delay. There are often delays in workplace level processes which will drag a matter beyond the period of statutory time limits, but there is nothing to stop a complainant making a referral within that period. Indeed it is prudent to do so if a person thinks the facts of the matter justify it and may ultimately require WRC involvement.

In the event that matters progress to the point where it is unnecessary to proceed with the WRC referral it may be withdrawn or a postponement sought, and this is obviously safer than relying on navigating the reasonably rigorous test set out above.

Accordingly, while the actions of the respondent towards the complainant in this case were deplorable it is not possible to provide him with a remedy for the reasons set out above.

Accordingly Complaint CA-00072998-001 is not upheld.

For the reasons set out above Complaint CA-00072998-001 is not upheld.

Time limits. Redundancy