A claim being brought by an employee under a piece of employment legislation or to the courts will generally be subject to a time limit. A claim brought outside the relevant time limit is said to be ‘statute barred’ so that regardless of the merits of the claim, it will not be considered.

The general time limit to bring a claim under Irish employment legislation is six months but a claimant could apply to have that time period extended in many (though not all) cases.

Up to now, however, there has been a lack of consistency in both the length of the potential extension and the circumstances that will trigger it. For example, under the employment equality legislation, the initial claim period of six months could be extended by a further six months where ‘reasonable cause’ is shown by the claimant.

The same criterion of ‘reasonable cause’ applies to the extension of the time to claim under the working time, fixed-term work and part-time work legislation, but in these instances the initial six month period could be extended by a further 12 months.

Contrast this with earlier statutes such as the payment of wages and unfair dismissal legislation where again the six month time limit could be extended by a further six months but only where the adjudicating body formed the view that ‘exceptional circumstances prevented the making of the claim’ within the initial time period.

Such exceptional circumstances have always been strictly interpreted and this has been a far more rigorous test than reasonable cause. For example, in the case of Christopher Byrne v P.J. Quigley Limited (UD 762/94) [1995 ELR 205], it was only following a social welfare investigation that it was determined that the claimant was in insurable employment between March 1992 and September 1993, so as to enable him to have the necessary year’s service to bring an unfair dismissal claim against the respondent employer.  The Employment Appeals Tribunal declined to grant the extension, pointing out that the social welfare investigation“triggered the lodging of the claim rather than hindered it, and therefore the exceptional circumstances caused the late lodging instead of preventing it”.

The Workplace Relations Act 2015, recently enacted on May 20th, is designed to ensure greater consistency across Irish employment legislation in this contentious area.

Section 41 (6) of that Act provides that an adjudication officer of the newly established Workplace Relations Commission to whom a complaint is assigned shall not entertain that complaint if it has been presented ‘after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates’.

Subsection (8) then goes on to provide that an adjudication officer may nonetheless entertain a complaint after the 6 month period has expired within a further 6 months ‘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’.

The question of what amounts to reasonable cause may therefore be about to take on added legal significance and it is likely that with the new uniform ground of reasonable cause, applications to extend may be examined more carefully than heretofore.

Today’s email reviews two recent Labour Court appeals decisions that look at this question, the first in some detail. These cases concern claims under the fixed-term and working time legislation respectively.

It is worth noting that in both cases the application to extend was rejected, with the Court overturning the Rights Commissioner’s decision on this question in the second case.

However, significantly, the Court found in the first case that where a respondent fails to acknowledge a complainant’s potential right to a contract of indefinite duration which arises by operation of law under the fixed-term legislation, there may be a continuing breach of which is not subject to a time limit.

National University of Ireland and Cunningham (FTC/11/56, Determination No FTD156, 13th April 2015)

Facts

The complainant in this case lectured in the respondent university between 1998 and 2011. There was, however, a fundamental dispute between the parties as to his employment status during a major part of this period.

The respondent contended that between 1998 and August 2008, the complainant worked as a sole trader under a contract for services, as opposed to a contract of service. It stated that he used the name ‘Business Excellence Systems’ and invoiced the university for his services and that he also provided services to other entities during this time. It said that in August 2008 the complainant was offered and took up a one year fixed-term contract due to expire at the end of July 2009. Thereafter, it said that he worked under a series of casual contracts until his retirement in May 2011.

The complainant, on the other hand, suggested that he was in reality employed under a series of fixed-term arrangements for each academic year from 1998 to 2011. Thus, he argued that he already had three years’ service under a series of two or more fixed term contracts by the time the Protection of Employees (Fixed-Term Work) Act 2003 came into effect in July 2003.

He argued that with further renewals of his contract from this point exceeding one year, he became entitled to a ‘contract of indefinite duration’ under the terms of Section 9 (1) of the Act.

He also made a number of other complaints under the Act. These included that the respondent had failed to provide him with a written statement of the objective grounds justifying the renewal of his contract on each occasion from July 2004 onwards under Section 8 and that as a fixed-term employee he was treated less favourably than permanent colleagues in relation to his terms and conditions of employment including access to pension benefits.

The complainant’s complaint forms were received by the Rights Commissioner Service on 14th March, 2011 and his claim was heard on 6th May 2011. His application to have an extension of time for the submission of his claim was rejected by a Rights Commissioner and each of his complaints under the Act were ruled out of time and therefore statute barred. He appealed that decision to the Labour Court.

Arguments

On appeal the respondent’s representative argued that as the claim was only lodged on 14th March 2011, his complaints could only include the time period going back six months from that date, i.e. 14th September 2010. As all the alleged contraventions related to matters that had occurred before that date, they were all statute barred.

The complainant’s representative submitted, however, that the delay in making complaints was due to the respondent’s ‘constant changes in position’ in its dealings with him. This was denied and the respondent pointed out that the documentation provided to the complainant at the point he was offered the fixed-term contract in August 2008 and subsequent correspondence in 2009 meant that the complainant could have been in no doubt as to his employment status prior to August 2008 and his changed status after that date.

Despite having this knowledge, it was suggested that he failed to act in good time and that there was no reasonable cause shown to grant any extension. It was also pointed out that for eleven years the complainant never challenged his status as a sole trader.

The complainant referred to the oft quoted case of Cementation Skanska and Carroll (DWT – 03-33) in support of his arguments for an extension. In this case, which the Labour Court has used for some time as the benchmark in this area, the Court found that it is for the claimant/complainant to show that there are reasons which both explain the delay and afford a reasonable excuse for it.

The explanation must make sense and the failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon. There must therefore be a causal link between the circumstances cited and the fact of 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 on time.

Finally, the length of the delay should be taken into account and even where reasonable cause is shown, the Court must still consider whether it is appropriate to grant an extension, for example, where the respondent may have suffered prejudice by the delay.

The complainant argued in terms of these reasonable cause tests that the constant changes in the respondent’s position had been designed to obstruct him vindicating his rights and that the denial of his rights under the legislation amounted to a continuum or a chain of events.

He argued that in many previous instances under the employment equality legislation, the Labour Court has held that discrimination cases may involve a series of successive incidents and that although some may be outside the six month period time limit, they will be admitted because they were similar and related to the most recent act complained of.

On the specific question of the complainant’s right to a contract of indefinite duration, it was argued that such a right accrued by operation of law and the complainant was not therefore obliged to even bring a complaint in order to vindicate that right and, again, supportive case law was cited in this respect.

The Court’s findings

The Court noted that the reason initially given to the Rights Commissioner to explain the delay in submitting his complaint was his misunderstanding that the six month period would only run from the time local discussions broke down.

However, it also observed that all of the complainant’s grounds of complaint under the Act fell outside the prescribed six month time limit and that even if it enlarged the time for making these complaints to the full 12 month extension potentially allowed, it would still not encompass the complaints made.

Nor did the Court appear to broadly accept the ‘continuing contravention’ argument made by the complainant, with one critical exception. Quoting from its own decision in the case of HSE Dublin North East and Ali Umar (FTC/09/28), it found that there may be a continuing breach of the legislation where a respondent fails to acknowledge a complainant’s status as a permanent employee by operation of law.

Related to this, it also decided that although it could not hear the complaint that the respondent had failed to provide written statements of the objective grounds justifying the renewal of each of the complainant’s alleged fixed- term contracts because that complaint was out of time, it could draw any inference it saw fit from any such failure when considering the complainant’s claim to be entitled to a contract of indefinite duration.

All of this however ultimately failed to benefit the complainant. The Court went on to decide that as he had retired and his contract had come to an end by the time the complaint was heard, a declaration that he was entitled to a contract of indefinite duration, should one be made, would be of no practical significance to him.

The Court noted that in response to its questions in this respect, the complainant had identified the issue of his pension entitlement as the only relevant detriment he had suffered and since this was the subject of a separate complaint under the Act (which incidentally failed on appeal to the Labour Court on the basis that it was statute barred), there was nothing to be gained by further examining this aspect of his complaints.

Thus, it decided that the alleged breach of Section 9 of the 2003 Act was ‘effectively moot’. Mootness refers to a legal doctrine which, according to the Supreme Court, involves a case that does not feature a live, concrete dispute between the parties and where a decision on the outstanding issues would have no direct impact on the parties.