Subject to some exceptions such as claiming a redundancy lump sum, the general time limit to bring a claim under employment legislation is six months from the date of the alleged contravention in question. Prior to the introduction of the Workplace Relations Act 2015, a claimant could seek an extension of time but the circumstances under which the extension would be permitted varied depending on the piece of legislation in question. Under the Unfair Dismissals and Payment of Wages Acts, for example, a complaint could be brought within a maximum of a further six months where the adjudicator was satisfied that ‘exceptional circumstances’ prevented the making of the claim within the initial six months. With employment equality and working time claims, on the other hand, an extension could be sought where ‘reasonable cause’ was shown, considered to be a somewhat lighter standard for a claimant to meet. With the introduction of the 2015 Act, the opportunity was taken to introduce a common standard of ‘reasonable cause’ across the board.

Thus, s.41 (6) of that Act provides that:

‘Subject to subsection (8), 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’.

And sub-section (8) that:

‘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 arguable that there is a marked difference, in theory at least, between demonstrating that exceptional circumstances prevented the making of a claim within the six months claim period and that such a failure was due to reasonable cause. Thus, it was speculated that the threshold to trigger an extension to claim under the unfair dismissals and payment of wages legislation, which had always been strictly interpreted under the old system, might be somewhat relaxed under the workplace relations regime.

This month’s article reviews two recent appeals from the Workplace Relations Commission (WRC) to the Labour Court on this question, one concerning unfair dismissal and the other payment of wages. It is arguable that the outcome of the first appeal, in particular, demonstrates that the Labour Court is applying the reasonable cause criterion quite strictly, in terms of the latitude allowed to employees to trigger the extension.

Iarnrod Eireann/Irish Rail and Lynch (UD 18/22, 15th May 2018)

The complainant’s (Mr Lynch) unfair dismissal claim before an Adjudication Officer of the WRC was successful, and it was ordered that he be re-engaged but on a final written warning. Iarnrod Eireann appealed that finding to the Court. As a preliminary issue, it raised again an argument that had been unsuccessful at the initial hearing; that the claim was statute-barred. The documentation disclosed that the complainant had been dismissed on 9th March 2016, but his claim had only been submitted on 16th November, over eight months later. The complainant argued before the WRC that there was reasonable cause to trigger the extension, in that there had been a delay by his representatives in submitting his application that was not deliberate. The AO concluded that had it not been for this delay, the complaint would have been submitted within the six months period and allowed the extension.

In submissions to the Court, the complainant explained that at an appointment shortly after his dismissal, a complaint form was filled out by his solicitor and he was given a copy of it. He said that he took this to mean that a complaint had been submitted on his behalf. As he was a member of SIPTU, he subsequently met with a union official on 5th May a number of weeks later to discuss his dismissal and his case. He showed the official the completed complaint form and it was explained to him that he would have to choose between representation by his solicitor or his trade union. His union official also took the completed form as evidence that a complaint had been submitted to the WRC. In due course, the complainant informed the union that he had opted to be represented by it. Some months went by and, in November, the union carried out an audit of its cases and noted that no date for a hearing had been notified in this instance. The official contacted the WRC who informed him that no complaint form had been received in this case. A complaint form was then immediately filled out by the union on November 10th.

On behalf of the respondent, it was argued that there was a clear failure on the part of both the solicitor and the union official to ensure that the claim was filed within the six months period. It was submitted that this explanation for the delay in filing the complaint did not amount to a reasonable cause within the test set out in the Cementation Skanska case (DWT 0338); that the claimant must show there are reasons that both explain the delay and that afford a reasonable excuse for it. Further, it submitted that it was legal practice that inadvertence on the part of a firm of solicitors will not be accepted as excusing a delay. The complainant, on the other hand, suggested that the Cementation Skanska test was satisfied in that the delay was justified by his reasonable belief that the solicitor had filed his claim form. The fact that he consulted with both a solicitor and his trade union demonstrated his intent to pursue an unfair dismissal claim and that this was supported by the immediate filing of a second claim as soon as the omission was discovered.

In a very short decision the Court stated that the question it had to determine was whether the complainant’s belief that a complaint form had been filed on his behalf was reasonably held. Referring to the complainant’s sworn evidence, it noted that at no point did he state that he formally instructed the solicitor to submit the claim form to the WRC and neither did he suggest that the solicitor ever confirmed that he had submitted the form on his behalf. The Court observed that a prudent representative, whether legally qualified or otherwise, ‘would not proceed to refer a statutory complaint on behalf of a client without first getting the client’s express instructions to do so and the client’s express approval of the completed draft referral document/form.’ Accordingly, the Court concluded that no evidence had been presented to it to permit it to find that the complainant’s belief was reasonably held as required.

It is arguable that this conclusion is somewhat harsh, although it should be said that the Court had the benefit of hearing and observing the complainant’s sworn evidence, which a written determination does not necessarily convey to the full extent. It is evident that the complainant intended to bring an unfair dismissal claim and his failure to present the complaint within the initial six months period was due to his belief that the form had already been submitted. His subsequent actions – consulting with his union on the question of representation, electing to be represented by that union and filling out a new form at the earliest opportunity when the error was discovered - seem to confirm this, but little weight seems to have been accorded to them in terms of deciding whether this belief was reasonable. The fact that the union official did not check after the first meeting with the complainant two months after his dismissal or after the complainant elected to be represented by the union whether the form had in fact been filed by the solicitor does not feature as a factor either in the Court’s determination.It seems to be implicit in the Court’s conclusion that the complainant should have understood the nature of a client/solicitor relationship and should have realised that, unless he gave formal instructions to the solicitor, and they were, in turn, confirmed to him formally, the claim form would not have been submitted. The assessment as to whether the complainant’s belief was reasonable seems to turn solely on this assumption. In conclusion, it should also be noted that the Labour Court’s decision on appeal is now final, with an appeal on a point of law only to the High Court. This effectively meant that the complainant had no further avenue to pursue.

The Grove After School Care (Management Company) and O’Sullivan (PW 18/3, 2nd May 2018)

The complainant in his case brought a claim on 12th January 2017, alleging that her employer had made an unlawful deduction from her wages under Section 6 of the Payment of Wages Act 1991. An Adjudication Officer of the WRC ruled that her claim was out of time and declined jurisdiction. The complainant appealed this decision, maintaining that reasonable cause prevented her from bringing the complaint within the required six months period.

In its determination in this instance, the Labour Court began by providing a useful summary of the case law on extending time. Again, it referred to the benchmark set in its own decision in 2003 in the Cementation Skanska case and explained that the rationale for the criteria outlined in that decision were derived from the case law of the Superior Courts in judicial review proceedings. Specific reference was made here to the High Court case of O’Donnell and O’Donnell v Dun Laoghaire Corporation [1991] IRLM 30 with its conclusion that the corresponding ‘good reasons’ test in judicial review cases must be an objective test, whereby the onus is on the plaintiff to show that there are reasons which both explain the delay and afford a justifiable excuse for it. The Court also observed here that the approach taken by the Labour Court in Cementation Skanska and subsequent cases was approved by the High Court in Minister for Finance v CPSU and Others [2007] 18 ELR 36.

It then went on to expand on the core elements of the test and these can be summarised as follows:

• The applicant must identify the reason for the delay and establish that it provides a justifiable excuse for it
• The onus is also on the applicant to establish a ‘causal connection’ between the reason provided for the delay and the failure to present the complaint on time. In effect the reason provided must be the actual reason for the delay
• The Court must be satisfied, as a matter of probability, that the complaint would have been presented on time were it not for the intervention of the factors relied upon as constituting reasonable cause
• Lastly, although the test imposes a relatively low level of reasonableness, there is some limitation on the range of issues that can be taken into account. Here, reference is made to the view of Costello.J in the O’Donnell case (see above) that a Court ‘should not extend a statutory time limit because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings’.

Turning to the facts of this case, the Court noted that the alleged deduction of the complainant’s wages occurred on 3rd February 2016, but the complaint was not submitted until 12th January 2017, almost a year later. The reason provided for this delay was that the complainant thought that she could recover the sum involved by bringing a complaint under the Organisation of Working Time Act 1997 (OWT). She gave evidence that the working time complaint was brought on 31st March 2016 and a decision received on 2nd December 2016. She claimed that it was only at this point that she became aware that she could not recover the alleged deduction under the OWT.  She then said that she took advice and submitted the payment of wages complaint as soon as possible, albeit some six weeks later. She submitted that this set of events satisfied the test for reasonable cause to trigger an extension. The respondent employer on the other hand argued that the complainant had brought a number of complaints against it which it had incurred considerable expense in defending and that having failed in other proceedings, she now sought to bring a subsequent action out of time. It argued that this was an abuse of process.

The Court found that the essence of the complainant’s case was that she did not bring her complaint within six months because she was ignorant of the relevant law that applied. It concluded that she had ample time in the six months following the termination of her employment to take advice to identify the relevant legislation under which to complain. It ruled that in order for an extension of time to be granted, the complainant must show that she was impeded, prevented or unable to commence the proceedings within the six months period. That was not the case here. Ultimately, it found ‘no merit in the argument that having failed to recover her alleged losses under one Act, she can commence proceedings under another Act and seek to rely on the failed action as the justification for the delay in commencing those proceedings’.