The complainant in this case alleged a number of breaches of the working time legislation concerning his entitlements to paid annual leave and public holidays.

Although his complaint was submitted some eight months after his employment terminated, a Rights Commissioner decided to allow an extension of time under Section 27 (5) of the Act (for reasons that are not explained in the Labour Court appeal decision) and he was awarded €900 in compensation. The respondent employer appealed this decision to the Labour Court. The complainant did not attend the appeal hearings.

It was clear that the complainant’s employment ended on November 22nd 2012. The respondent’s representative submitted a letter to the Court from the complainant’s representative addressed to the Workplace Relations Commission enclosing the complaint form which was dated 26th July 2013, over eight months later. This letter explained that the firm in question had had difficulty downloading the complaint form and had contacted the Commission on 7th May 2013, presumably for assistance.

The respondent suggested that this letter clearly demonstrated that the complaint had the benefit of legal advice from 7th May, some two weeks before the six month time limit was due to expire and yet the claim form was not sent in until 26th July, a delay of well over two months. It submitted that even if there was a genuine technical difficulty, a delay of a few days might be reasonable but not of two months. There were no reasonable grounds therefore to extend the time limit.

The Court again referred to and quoted from the case of Cementation Skanska and Carroll (DWT – 03-33) as the barometer for making decisions as to whether time will be extended.

It observed that it is well settled that it is for the complainant seeking an extension of time to both explain the delay and put forward a reasonable excuse for it. It noted that the complainant did not attend the hearing to discharge this onus but it also clarified that it was not satisfied that the excuse for the delay contained in the correspondence from his legal representatives met the standard set in the Cementation case. It therefore refused to allow the extension and set aside the Rights Commissioner’s decision.

See also: National University of Ireland v Cunningham (FTC/11/56, Determination No FTD156