Case Number: ADJ-00028396. Workplace Relations Commission

• Docket Number: ADJ-00028396
• Hearing Date: 19 March 2021
• Date: 26 April 2021
• Court: Workplace Relations Commission
• Respondent: A Technology Sales Company

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028396

Parties:

	Complainant	Respondent
Anonymised Parties	A Sales Representative	A Technology Sales Company

Representatives Not represented Harriet Meagher BL

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00036464-001	31/05/2020

Date of Adjudication Hearing: 19/03/2021

Workplace Relations Commission Adjudication Officer: Catherine Byrne

Procedure:

This complaint was submitted to the WRC on May 31st 2020 and, in accordance with section 41 of the Workplace Relations Act 2015, it was assigned to me by the Director General. Due to the closure of the WRC as a result of the COVID 19 pandemic, a hearing was delayed until March 19th 2021. On that date, I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. At the hearing, I gave the parties an opportunity to be heard and to present evidence relevant to the complaint.

The complainant represented herself and the respondent was represented by Ms Harriet Meagher BL, instructed by Ms Thérèse Chambers of William Fry Solicitors, assisted by Ms Ellen O’Duffy and Ms Louise Harrison. The respondent’s human resources (HR) manager and programme director also attended.

Background:

On January 22nd 2018, the complainant commenced employment with the respondent as a sales representative. Her annual salary was €35,000. On September 24th 2019, she was issued with a final written warning as a result of a breach of the company’s email policy. She was dismissed on November 12th 2019 following a disciplinary investigation into 11 incidents of lateness the previous month. While the complainant alleges that her dismissal was unfair, she submitted a complaint under the Terms of Employment (Information) Act 1994. On her e-complaint form, she said that she was not notified in writing of a change to her terms and conditions of employment. In the detailed outline of her complaint, she explained that she thought she was entitled to three warnings about a breach of a policy, and that she only received only two, before being dismissed. In the respondent’s written submission in advance of the hearing, three preliminary issues were raised: 1. The complainant has not submitted her complaint against the correct legal entity. 2. The time limit for submission of a complaint expired on May 12th 2020 and this complaint was submitted on May 31st. 3. The complainant submitted a complaint under section 7 of the Terms of Employment (Information) Act 1994 and she has not explained what actions of her employer resulted in a breach of a provision of this Act.

Consideration of the Preliminary Issues:

1. The Respondent is Incorrectly Named On the e-complaint form which she sent to the WRC on May 31st 2020, the complainant made a minor omission in the legal title of the respondent consisting of the failure to include the words “Ireland” and “Limited” in the name of her employer. Finding on the First Preliminary Issue It is my view that no prejudice arises from this error and, from the name provided on the e-complaint form, it is clear to any reasonable person who the respondent is. It is also clear to me that the complainant understands who her employer was, because she differentiated the name of the respondent from the name of the client company to which she was assigned during her employment. 2. Time Limit for Submitting a Complaint Section 6 of the Workplace Relations Act 2015 sets out the timeframe within which complaints may be submitted for adjudication: “…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.” An extension of time is provided for at subsection 8 of this section: “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.” It is clear from this section of the Workplace Relations Act that, “for reasonable cause,” an extension of the time limit from six months to 12 months for submitting a complaint may be permitted. This complaint was submitted 19 days outside the six-month time limit. On her e-complaint form, the complainant acknowledged that her complaint was submitted after the time limit when she said, “I might be a few weeks late with this complaint but in the past months I’ve been busy with finding a job and adjust to the lockdown. I hope you can consider the complaint.” At the hearing, the complainant said that she didn’t submit her complaint within six months of her dismissal because she was depressed and she felt a need to leave Ireland. She went to stay with her sister in England. She said that she was “adjusting to the lockdown” and that it took her a while to “get back on my feet.” When she returned to Ireland, she had to look for a place to stay and then she had to look for a job. On behalf of the respondent, Ms Meagher referred to a number of legal precedents where the issue of the time limit for submitting a complaint was addressed: University Hospital Waterford v McPartlan [2019] 4 JIEC 2401, PDD 194 Relying on the test formulated by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT 0338, in the McPartlan case, the Court found that the complainant’s ignorance of the law was the “operative cause” for her submitting her complaint outside the legal time limit and that this was not a justifiable excuse for the delay. Minister for Jobs Enterprise and...