Case Number: ADJ-00030501. Workplace Relations Commission.

Judgment Date03 August 2022
Hearing Date15 March 2022
Date01 August 2022
Docket NumberADJ-00030501
CourtWorkplace Relations Commission
RespondentCamfil (Irl) Limited Camfil
Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant was employed by the Respondent as a Purchasing Representative. Employment commenced on 01/01/1990 and ended on 21/02/2020 (being challenged).

This complaint was received by the Workplace Relations Commission on 20th October 2020.

Summary of Respondent’s Case:

Preliminary Issue.

The important preliminary issue of jurisdiction is raised in this case on the basis that it is submitted that the Complaint made and in respect of which adjudication under Section 8 of the Unfair Dismissal’s Act 1977 is sought by the Complainant is out of time.

The Complaint was not submitted to the Workplace Relations Commission within the prescribed timeframe stipulated in Section 8 (2) of the Unfair Dismissals Act 1993 which amended Section 8 of the 1977 Act.

The relevant provision within Section 8(2) of the 1993 Act may be recited as follows:

“A claim for redress under this Act shall be initiated by giving notice in writing ……

(a) within the period of 6 months beginning on the date of the relevant dismissal

or

(b) if the rights commissioner or the Tribunal (amended to Adjudicator per 2015

Workplace Relations Act) …is satisfied that exceptional circumstances prevented the giving of notice within the period aforesaid, then, such period not exceeding 12 months from the date aforesaid as the rights commissioner or the Tribunal, as the case may be, considers reasonable.”

Date of Dismissal: 21/02/2020

The Complainant’s employment was terminated by notice in writing in a letter dated January 30th, 2020. The date of termination was prescribed as February 21st, 2020.

This letter issued following a disciplinary hearing in which the disciplinary manager advised the Complainant that for reasons set out;

“In light of my findings, I am obliged to decide, and advise you that your employment with Camfil (Irl) Limited will formally terminate on Friday February 21st, 2020.”.

Following a subsequent Disciplinary Appeal Hearing on July 3rd, 2020, and a determination upholding the decision to terminate the complainant’s employment was issued by the external Disciplinary Appeal Chairman, dated July 24th, 2020.

By letter dated August 4th, 2020, Ms. Keating was advised that following the Appeal Decision issued that the termination of her employment on February 21st, 2020, was confirmed, and as result any outstanding payments accruing would be paid.

Stated in January and restated in August 2020, by the Respondent, the date of termination

of the Complainant’s employment was clear and unambiguous.

Moreover, on the online Complaint Form used to lodge her complaint with the Workplace Relations Commission, the Complainant refers to the date on which her employment ended as “21/02/2020”.

Accordingly, the Complainant was, also, very clear and unambiguous in respect the date of her dismissal.

Date of Complaint: 20/10/2020

The Workplace Relations Commission, in a letter putting the Respondent on notice of Ms. Keating’s complaint seeking adjudication under the Unfair Dismissals Act 1977, advised that the said complaint was received on October 20th, 2020.

The fact is that there was a total of 172 working days (34 weeks and 2 days) between the date of dismissal and the date of Complaint.

As noted, Section 8(2)a specifies a period of 6 months or 26 weeks (130 working days) within which a Complaint seeking adjudication must be lodged, save where “…exceptional circumstances prevented…” notice of complaint being lodged within the 6 months period specified.

It is submitted that no such exceptional circumstances preventing notice of complaint arose in the instant case.

Accordingly, no reasonable cause arising from identifiable factors preventing notice of complaint preventing notice of complaint per Section 8(2)(a) arose.

Neither can it be said that the factors listed in pleadings on behalf of the Complainant (Paragraph 85), as factors justifying an extension of time per Section 8(2)(b) be considered as reasonable and demonstrating a causal link between such factors and the timing of the notice of complaint concerned.

Pleadings Re: Reasonable Cause Justifying an Extension of Time

Five grounds are listed in support of an application for an extension in time per Section 8(2)(b).

In the first instance neither any one of the five factors itemised as “…reasonable cause to extend the time limit for the Complainant’s lodging her claim from 6 to 8 months…” or la five in aggregate, can be sustained as substantive factors preventing compliance with the Section 8(2)(a) requirement.

Neither can the ‘but for’ test be successfully applied to each or any of the said factors such that they prevented compliance.

No causal link can be reasonably established in the context that this requirement is referred to in the recitation of precedent contained in the pleadings concerned.

Reference is made to Paragraphs 83 and 84 of the relevant submission, and text reproduced from DWT 0338 Cementation Skanska v Carroll and Salesforce.com v Leech EDA1615, respectively.

In ADJ-00029355 dated August 23rd, 2021, the Adjudicator recited and relied upon the two cases referred to herein and in rejecting the complaint based on non-compliance with the notice period requirement, in summary, emphasised the onus placed on a complainant to demonstrate a compelling causal link between circumstances said to justify time extension and failure in compliance with notice requirements.

The Adjudicator characterised requisite test as the “Explain and Excuse” test.

In a more recent Decision dated January 6th, 2022, an Adjudicator considered the question of compliance with the Section 8 notice requirement (ADJ-00028373).

In this Decision the Adjudicator placed emphasis on the nature of a factor cited as the cause of delay in submitting a complaint under the Unfair Dismissals Act. In so doing, the Adjudicator referred to the amendment to the 1993 Unfair Dismissals Act in which the Section 8 notice requirements language retained the definition of circumstances justifying an extension in time as circumstances “preventing” compliance.

In explaining the emphasis concerned the Adjudicator stated that The word suggests something active which was outside the Complainant’s immediate or direct control…”. In deciding that the complaint in question was out of time the Adjudicator found that she was “…satisfied that the failure to notify the Director General of the complaint within the six- month period provided for in Section 8(2)(a) was prevented due to reasonable cause as required under the 1977 Act as amended and therefore decline to extend the initial period of six months set out in that same section of the Act.”.

Pleadings Re: Date of Dismissal

Separate from pleading in respect of an extension in time, submissions are also made on the

Complainant’s behalf in respect of the date of dismissal.

As already stated, the date of dismissal is unambiguously acknowledged in the Complainant’s complaint submitted to the Workplace Relations Commission on October 20th, 2020.

In pleadings submitted on this issue the case of UPC Communications Ireland Limited (now Virgin Media Ireland Limited) and the Employment Appeal Tribunal and Ann Marie Ryan [2017] IEHC 567 is substantially relied upon.

It is pleaded on behalf of the Complainant that these Judicial Review proceedings were conclusive in establishing that a third party, the Employment Appeals Tribunal, were entitled to apply a broad discretion in exercising a discretion in jurisdiction when proceeding to hear a...

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