The issue of ‘out of time’ or late complaints frequently surfaces in Workplace Relations Commission (WRC) proceedings. Hence, it is notable that in 2021 the High Court rejected a worker’s judicial review application against a WRC adjudication decision that had disallowed him an extension of time to bring a claim. Serving to confirm the authority of the State’s industrial relations third party machinery, in this precedent setting case, the judge held that the ‘proper forum for the resolution of this factual dispute … is the Labour Court’, which hears ‘de novo’ appeals of WRC adjudication decisions(Hakan Erdogan v Workplace Relations Commission, [2021] IEHC 348).

The Legal Limit

In its recently revised publication entitled: ‘WRC Procedures In The Adjudication And Investigation Of All Employment And Equality Complaints And Disputes’, the WRC reminds parties that: ‘the Workplace Relations Act 2015 provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation. There are equivalent time limits under the Unfair Dismissals Act, the Employment Equality Act and .. a longer period applies regarding Redundancy Payment Act complaints. The date when a complaint or dispute is referred is the date when it is received by the WRC. If a complaint is not referred within the time limit, an extension may be granted by an Adjudication Officer (AO) up to a maximum time limit of 12 months where .. the complainant has demonstrated ‘reasonable cause’ for the delay. An AO has no power to extend the time limit beyond 12 months after the last alleged contravention .. If a complainant is seeking an extension of time, they will need to provide detailed reasoning and any supporting documents in support of the application ..’.

This ‘reasonable cause’ provision frequently features as a ‘preliminary’ or ‘jurisdictional’ issue at WRC adjudication service hearings. However, despite the Commission’s reference to the fact that the aforementioned Act lowers the threshold from ‘exceptional circumstances’ to ‘reasonable cause’ (ADJ-00001568) and the Labour Court’s description thereof as ‘a relatively low threshold of reasonableness’ (AWD1517), this issue frequently features as a source of relief for respondents and frustration for complainants and their disallowed claims. More detailed guidance on the Statute of limitations is at the end of this article.

The extension criteria

The Commission’s database is well populated with complaints that were deemed to be ‘out of time’ and failed to meet the ‘reasonable cause’ threshold. The term ‘reasonable cause’ has been carefully considered by the Labour Court. For example, in the Salesforce (EDA1615),Elephant Haulage (EET082) and Cementation Skanska (DWT0338) cases, it was held that there is an onus on the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. That is, there must be a causal connection between the reason cited and the failure to present the complaint within the prescribed timeline.

Notably, the approach taken by the Labour Court in the Cementation Skanska (and subsequent) cases, has been approved by the High Court (in the Minister for Finance v CPSU and Others – 2007 18 ELR 36) case. Arising therefrom, the relevant third party must be satisfied that – as a matter of probability – the complaint would have been presented in time but for the intervention of factors constituting ‘reasonable cause’. However, there is a limitation on the range of factors that can be taken into account. Furthermore, consideration must also be given as to whether the respondent employer would be prejudiced should the ‘late’ claim be approved for determination.

The relevant provisions draw heavily on the High Court’s consideration of this matter in O’Donnell v Dun Laoghaire Corporation [1991-ILRM 30], wherein it was held that the relevant: ‘test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings’. In the aforementioned Cementation Skanska case, the point is also made that with extension applications: ‘the length of the delay should be taken into account. A short delay may require only a slight explanation while a long delay may require more cogent reasons’. Furthermore, the reason(s) proffered: ‘must make sense, be agreeable to reason and not be irrational or absurd’. To the frustration of many complainants and the relief of many respondents, the practical application of these provisions in a manner that enables a claim to proceed is rare.

Unsuccessful extension cases

When evaluated on a case-by-case basis, the Commission’s database is well populated with ‘out of time’ decisions. These include the claimant:

• being hospitalised and travelling abroad due to a family bereavement and illness (ADJ-0009650);
• being on sick leave, albeit during this time being able to instruct solicitors, who issued correspondence to the respondent (EDA1921);
• having mental health issues, but also having the benefit of both legal advice and trade union services (EDA188 & 189);
• being resident outside the State, as ignorance of one’s legal rights is not a justifiable excuse (UDD1824);
• post-dismissal, issuing lengthy correspondence to the respondent and engaging in extensive negotiations thereafter (ADJ-00035561);
• asserting ill-health (that was not supported by medical certification) and referring to caring responsibilities didn’t constitute ‘cogent reasons’ to justify a delay (UDD1969);
• having the claim submitted late due to an oversight by the representative (AWD201);
• having their claim submitted late because their union rep was ill, as it was ‘incredible’ that the largest trade union in Ireland didn’t have the resources or structures to deal with the matter (UDD213).
• awaiting the outcome of a solicitor’s data access request, a ‘lag generally’ in the work of legal practitioners in July/August annually, workload challenges in a small legal practice and the solicitor having to investigate the matter (EDA192).

Successful extension cases

However, there have been some successful applications to have the relevant time limit extended. For example, earlier this year a complainant’s participation in an ongoing workplace investigation was deemed (by the WRC) to constitute an acceptable basis for an extension (ADJ-00028742 and ADJ-00032309). This tallies with a decision issued back in 2016, when the WRC acceded to an extension request, as the complainant was co-operating with the investigation into her complaints up to the time that the complaint was submitted (ADJ-00002040).

In 2021, a claim for outstanding holiday pay during a period of sick leave was submitted 10 days late. However, in this instance the WRC’s AO agreed that there was ‘reasonable cause’ for the delay. Following the claimant’s termination of employment, there was ongoing engagement with the employer (by the employee’s representative), in an effort to resolve the matter and avoid going to the Commission for an adjudication. Notably, when the respondent employer stopped engaging (and the employee’s representative was unable to attend the office due to a family member contacting Covid), the claim was submitted on his return to work and it was approved for adjudication (ADJ-00030160).

In 2015, the ‘reasonable cause’ threshold was also deemed by the Labour Court to have been met by 3 agency workers who had their (‘out of time’) equal pay claim processed, as they: ‘were under the assumption that retrospective calculations were being calculated to reflect the improved rates applying to direct employees’. In this instance, the Court held that the delay was: ‘both explained and justified’ (AWD1517). In the same year, the Court allowed an extension in a case where the medical evidence submitted was deemed ‘strong enough’ to conclude that the complainant: ‘was not fully capable of asserting her rights’ inside the 6 month time limit, and that: ‘she did so as soon as she was so capable of doing’ (EET146). Notably, this decision was issued despite the respondent pointing out that the complainant was able to write 3 letters during the relevant 6 months, which: ‘demonstrates that the complainant had access to legal advice at this time and that she could therefore have commenced proceedings within the statutory time limit’.

The same reason was successfully proffered in a case in the following year (2016), prompting the WRC to find that: ‘illness intervened to prevent the complaint being made in time’ (ADJ-00000187). The ‘illness’ argument also featured as recently as 2023, when the WRC held that it was: ‘satisfied, based on the documentation submitted by the complainant from his treating medical professionals concerning the deterioration in his mental health, that the complainant has established reasonable cause for the delay in submitting his claim’.

In 2016 the Labour Court endorsed a WRC ‘out of time’ decision in a case where the respondent’s disciplinary policy provided that: ‘no disciplinary sanction shall take effect until after the time for lodging an Appeal has expired, or until the Appeal has been determined ..’. Accordingly, the Court concluded that: ‘.. therefore, the claim was filed in time’ (UDD1611).

No time limits on industrial relations disputes

In the case of industrial relations disputes, the aforementioned time limit provision does not normally apply. That is, the time constraint pertains to enactments and statutes explicitly specified in sections 5 and 6 of the 2015 enactment. Hence, complaints/disputes lodged via the Industrial Relations Act, 1969 are not comprehended by those sections and are not constrained by the 6 month time limit, thus extending jurisdiction and enabling AOs to hear cases where the dispute extends back beyond the 6 month period.

Notwithstanding same,since 2015 retired persons are covered within the statutory meaning of the term ‘worker’ and can be a party to a trade dispute. However, the circumstances in which an AO or the Labour Court can investigate a trade dispute to which a retired person is a party is limited by Section 26A  (as inserted in the 1990 Act), if they have: ‘ceased to be employed by reason of retirement .. unless .. the dispute was referred to the Commission (or the Court) for conciliation within a period of 6 months from the date on which the worker’s employment ceased, or the date on which the event to which the dispute relates occurred ..’. However, this timescale may be extended ‘by a further period not exceeding 6 months where the period referred to .. was due to reasonable cause’. Accordingly, in 2018, the Labour Court held that a claimant who had retired in 2010 and referred her case to the Court in September 2018, was statute-barred. As a result, it concluded that: ‘the Court has no jurisdiction to hear her case’ (LCR21833). Notably, this time constraint provision also applies to complaints of victimisation taken under the Industrial Relations (Miscellaneous Provisions) Act 2004.

The ‘continuum’

Despite the paucity of successful time extension applications, third parties have occasionally extended their remit (in equality-related cases) to what can be categorised as ‘historical’ incidents. For example, in 2011, in the Hurley v Cork VEC (EDA1124) case, the Labour Court succinctly summarised the scenario, explaining that: ‘occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make all of them part of a continuum’.

Relying upon Section 77(5) of the Employment Equality Acts, it then proceeded to clarify that: ‘if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon’. Under this section of the legislation, an act will be regarded as extending over a period should the respondent employer be deemed to maintain a discriminatory regime, rule, practice or principle that has had a clear and adverse effect on the complainant.

This finding tallies with a British Court of Appeal’s decision in 2006, when (reversing an Employment Appeal Tribunal determination), it explained that: ‘a vulnerable employee may, for understandable reasons, put up with less favourable treatment or detriment for a long time before making a complaint to a tribunal .. the last act (or failure) within the 3 month may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is .. (they) will be treated as in time’ (Arthur v London Eastern Railway Ltd. EWCA Civ 1358). The relevant legal principle surfaced again at the (Irish) Equality Tribunal in 2015, when the Equality Officer declared herself satisfied that: ‘the events which have occurred since the incident in November 2010 are sufficiently linked so as to make them part of a continuum’ (DEC-E2015-079). Notably, in the following year, the Labour Court reversed an Equality Officer’s decision and granted an extension when – relying upon a British House of Lords’ decision (in Barclays Bank plc v Kapur IRLR 387) – it agreed that: ‘the last act (or failure) within the 3 month period may be treated as part of a series of  similar acts (or failures) occurring outside the period’ (EDA163) (n.b. a 3 month time limit applies in Britain).

The most authoritative judgement on this matter was issued by the Supreme Court in 2016, when it held that

‘ .. s. 77(5)(a) of the 1998 Act deals with a situation in which there are a series of separate acts or omissions .. which, whilst not forming part of a regime, rule, practice or principle are sufficiently connected so as to constitute a continuum of discrimination .. separate manifestations of the same disposition to discriminate .. once a complaint is made within six months from the date of the last act or omission, all conduct found to form part of the continuum will be regarded as having occurred within time .. it is possible to plead matters which have occurred on a date or dates far beyond the six month period. In theory, such could extend for several years prior to the date of complaint .. all such incidents will be regarded as being within time ..’ (Co. Louth V.E.C. v Equality Tribunal 2016 IESC 40).

Conclusion

Further guidance on the statute of limitations

As noted above, the legislation provides a 6 month window for filing a WRC complaint application. According to Setanta solicitors‘the clock starts running on the 6 months rule at different times depending on the context of the case’, as follows:

• Pay Disputes: After the statement of pay is received from employer
• Disputes re Hours: From contravention mentioned in complaint
• Terms and Conditions: From the date of termination
• Unfair dismissals: Date of termination
• Minimum notice: Date of termination+ appropriate notice added
• Leave: varied between
  • Maternity: Date notice of pregnancy given to employer
  • Adoptive: Day of placement or when no placement takes place notice of intention to take leave given to employer
  • Paternity: Day after date of dispute
  • Parental: Date of occurrence of dispute
  • Parent’s: Day after date of occurrence of dispute
  • Annual: From date of contravention
  • Public holidays: From date of contravention
  • Sick Leave: depends on contract of employment about to change with Sick Leave Bill 2022
  • Carer’s Leave: From contravention
  • Force majeure leave: Date of occurrence of dispute
  • Compassionate Leave: not protected
• Jury service: Date of dispute
• Career break or study leave: not protected
• Discrimination: Date of (most recent) occurrence
• Penalisation: Date of (most recent) occurrence
• Whistle-blowers: Date of contravention
• Protections of young persons: Date of contravention
• Transfer of undertakings: Date of alleged contravention
• Fixed term employee protection: Date of contravention or termination (earlier)
• Part time employee protection: Date of contravention or termination (earlier)
• Agency Work: Date of contravention