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Workplace Relations Commission

6 Month Time Limits in Employment Cases-How Do You Show ‘Reasonable Cause’ to Obtain an Extension of Time?

If you want to bring a claim for unfair dismissal or non-payment of wages or payment of annual leave or any other breach of your employment rights you must bring your claim within 6 months of the contravention.

But the WRC and the Labour Court have discretion to extend this time to 12 months if ‘reasonable cause’ is shown.

Most of the employment law acts such as the Unfair Dismissals act 1977 or the Organisation of Working Time act 1997 acts will state something like the following,

(4) A rights commissioner shall not entertain a complaint under this paragraph if it is presented to him or her after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(5) Notwithstanding subparagraph (4), a rights commissioner may entertain a complaint under this paragraph presented to him or her after the expiration of the period referred to in subparagraph (4) (but not later than 12 months after such expiration) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

Section 41 (8) of Workplace Relations Act 2015 states:

(8) 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.

Reasonable Cause

What is ‘reasonable cause’? Let’s have a look, shall we.

This issue has been decided upon regularly by the Workplace Relations Commission (WRC), the Labour Court, and the Civil Courts.

In this 2016 decision of the Adjudicator in the WRC the issue is teased out as follows:

As submitted by the complainant, the test to extend time to permit a claim of unfair dismissal submitted later than six months but within one year has been reduced from “exceptional circumstances” to “reasonable cause”. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:

            “It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the     circumstances cited and 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 in time.

            The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

            “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the   delay ceased to operate before the complaint was presented, that may undermine a    claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an   applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The circumstances explained by counsel for the complainant are, of course, very unfortunate. The solicitors instructed by the complainant played an active role in and around the time of the complainant’s dismissal, where they engaged with the respondent on her behalf. It is through inadvertence that the claim was not submitted within six months of the complainant’s dismissal. It is fair to say that this is the nightmare scenario for any person, including professional lawyers, engaged in advocacy on another’s behalf. The issue to be determined here is whether it can amount to reasonable cause to allow a late claim to proceed.

Having considered the Labour Court authorities, I am obliged to find that the claim of unfair dismissal cannot proceed.

In a Labour Court decision in November 2017, PDD 171, the Labour Court looked at the question of reasonable cause and delay in bringing a claim as follows:

The Complainant has renewed his application to extend time as part of his appeal to this Court. The matter, therefore, falls to be considered afresh in the context of a de novo hearing.

Section 41(8) of the 2015 Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: –

“It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and 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 in time.”

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the 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. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the Complainant would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

Takeaway

When you review these decisions carefully it appears to be the case that good reasons for reasonable cause cannot be defined precisely but the circumstances should be looked at objectively, not subjectively.

What you need to show is that there are reasons for the delay which

  1. Explain the delay and
  2. Afford a justifiable excuse for the delay.

The established test for delay in these cases is set out in DWT0338 CEMENTATION SKANSKA (FORMERLY KVAERNER CEMENTATION) LIMITED and TOM CARROLL.