Category: Workplace Relations Commission

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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.

Categories
Unfair Dismissal Workplace Relations Commission

How to Make a Decision to Bring an Employment Claim to WRC or Not

Are you torn between bringing a claim to the Workplace Relations Commission (WRC) or walking away from the issue?

I meet employees on a weekly basis who face this decision. On the one hand they feel they have been treated unfairly, and perhaps unlawfully, in the workplace. But they face the tough decision to submit a claim to the WRC or even commence legal proceedings in the civil courts or walking away, forgetting about it, and putting the difficulty behind them.

It is not an easy decision.

Let’s take a look at some of the factors you will need to consider.

Justice

Many employees speak about getting justice and wanting to do something about what they see as the essential unfairness of how they have been treated by the employer. This appears to be a noble, principled position to adopt.

But if it involves a claim which will inevitably involve time, stress, and legal costs and the potential financial payback does not exceed the costs incurred it may be prudent to have a second think about bringing the claim.

Let me give you a simple example.

Let’s assume you have been dismissed from your job and you believe you have a strong case for unfair dismissal and you are anxious to pursue it.

Let’s assume, too, that you have been successful in getting a new job quickly after the termination of the old one and you have only been out of work for 3 weeks.

The Unfair Dismissals Act 1977 provides that if you succeed in your claim to the WRC the compensation you can be awarded is “financial loss”. Financial loss is essentially loss of pay or remuneration as a result of your sacking.

But your financial loss, assuming you start the new job 3 weeks later, is only 3 weeks’ wages.

Now, let’s assume you were taking home €500 per week, then your loss is €1,500. In these circumstances, if you are successful the WRC adjudicator can award you a maximum of 1 month’s salary which is approximately €2,000.

So, you might win €2,000 if you succeed but you will have to pay your own legal costs and it is extremely unlikely that your legal costs will not comfortably exceed €2,000. And then you must consider the stress of putting yourself through the whole process and the possibility that you will lose, in which case you are now out of pocket and your sense of unfairness and injustice has just increased significantly.

Now consider you do win but the employer has deep pockets and appeals the WRC decision to the Labour Court. You will have more legal costs and there is the possibility of your win at the WRC being overturned and you being further out of pocket.

Let me be clear: I am not trying to put you off, you may be perfectly happy to pursue your claim on a point of principle and let the cards fall where they may. There may well be an aspect of clearing or vindicating your good name and that is worth fighting for.

But you do need to think through the process from start to finish and weigh up the pros and cons and look at the potential outcomes.

For example, your case would be a completely different one if you were out of work for 6 months and had tried your best to get a new job. In this situation your financial loss will be 6 months’ wages so the financial analysis of your potential claim is radically different. To put it bluntly, it may well be worth a punt.

Justice v financial reality

You may have to weigh the justice or principle of your case against the financial reality and decide whether to pursue the matter or not. This can only be done by a cold headed analysis of the potential claims you have, the possible outcomes and remedies, and the probability of each outcome.

Conclusion

Bringing a claim to the WRC, Labour Court, or civil courts is an easy thing to do. But before you decided to do so you should consider the overall situation, what the potential outcomes might be, and the various steps along the way to the final conclusion, not just the first, easy step of submitting a claim.

You need to weigh it up like the moves in a chess game. Thinking only 1 move ahead is bound to end in disaster.

To assist with your decision, and to ensure you know what factors to consider, it’s a smart idea to get professional advice.

Categories
Employment Claims Workplace Relations Commission

The Intermeddling Well Intentioned Friend/Partner-Don’t Become a Victim

meddling friend

One of the most annoying, frustrating individuals I frequently encounter is the well meaning, well intentioned supporter/friend/partner/spouse.

He miraculously appears

  1. To know the law inside out
  2. To know all the facts and circumstances of the victim’s unfortunate experience in the workplace.

He, and it’s nearly always a he (sorry lads), insists on answering all the questions I put to the aggrieved, distressed employee who has come to me with a problem arising from the workplace.

He means well, sure, but how he can tell me what happened in the workplace on various dates when he was in a different parish is a source of mystery and puzzlement to me. And when he has never worked as much as 5 minutes in that workplace.

How he can tell me, with such vivid accuracy, what the colleague or rude customer or ignorant manager/supervisor said to the ‘victim’-the employee I am trying to assist and advise-baffles me.

Of course, the truth is he doesn’t know what happened or what was said; all he knows is what he has been told by the lady who has come to me for advice.

So, why not let her speak?

Why not let her tell me what happened?

Why not let her tell me what is on her mind?

Why not let her give me first hand evidence by her direct account rather than his second-hand coloured version of hearsay?

Some lads are just irresistible.

No matter how much you try to ignore them, no matter how much you avoid eye contact for fear of encouraging them, no matter how reasonable you act in putting a few questions to the upset employee it proves to be an exercise in futility. They are incorrigible.

And then when it comes to the law-my goodness-they have Googled and researched to their heart’s content for weeks on end and have finally come across one or two cases that have a passing relationship to their partner’s case.

And they have noted the amount of compensation awarded and cannot see why their partner’s case is not worth at least this much along with a significant premium.

The fact of the matter, however, is that these lads know as much about the law as I know about root canal treatment.

Or treatments for depression.

Or genetics or the value of closely studying yeasts.

The best thing they could do would be to give support-real support-to their partner/friend/spouse. Not to interfere or purport to speak for them or overbear their mind to the point where the victim is sitting there without a voice or an opinion and getting increasingly unsure of what happened that led to the problem in the first instance.

But just let them talk, let them tell their story.

Don’t be one of these lads.

You’re in the way.

Sorry. I know you mean well, and you have your friend’s/partner’s interest at heart.

But you would be better off letting your partner/spouse tell her story in her words.

Because apart altogether from the benefit from a legal perspective it’s also therapeutic for the person you love.

If you are the employee, you need to be aware of this phenomenon and avoid it like the plague. It will hinder, not help, you.

It may involve some ‘tough love’, some honesty.

But sometimes ‘tough love’ is just what we need, and what’s right.

Categories
Employment Claims Workplace Relations Commission

3 Mistakes I Have Observed at the WRC/Labour Court in the Last 10 Months

irish solicitor

I have represented a good deal of clients in the Workplace Relations Commission and Labour Court over the last 10/12 months. In that time period I have observed what I consider to be 3 significant mistakes at those hearings.

You might learn something from them; I know I have.

Let’s take a look, shall we?

1. Asking too many questions in cross-examination

I acted for a client-an employee-in the WRC who had a great story to tell.

I took him through direct evidence and this was his opportunity to tell his story. My job was to ensure he got to tell all his story in the most sympathetic light to his case.

I did an average job but did leave out two very important questions. These 2 questions were vital pieces of evidence and left a couple of gaps in my client’s evidence.

I need not have worried for too long, however, because the HR representative for the other side (the employer) did my job for me when he was cross examining. He asked the questions that I had forgotten and my client took the opportunity with both hands and plugged the holes in his original evidence.

It is arguable that this was even better than if I had asked the questions because the fact that the answers came out in cross examination may have given the evidence even more credibility.

The big mistake? The HR representative for the other side asking too many questions.

Sometimes the best thing you can do in cross examination is shut up and sit the hell down.

Don’t pay any heed to Rumpole of the Bailey setting a fiendishly clever trap for a witness; don’t mind the cross examination scenes you see in TV crime dramas or Top Gun when Tommy Lee Jones cross examines Tom Cruise.

These pieces of storytelling or theatre are just that and should be recognised as such.

The lesson? Don’t ask questions in cross examination for the sake of hearing your own voice; sometimes the best thing you can do is shut up.

2. A stray document

Another mistake I encountered was being given a bunch of documents by the representative for the other side and finding a document-a letter-which was of immense value to my client’s case and which we did not know existed.

And even if we knew it existed we would not have had any right to it as the other side could have claimed it was entitled to legal privilege.

But here it was amongst a huge bunch of the usual stuff like a diamond in a pigsty.

The value of the document was that it showed the other side-the employer-was told something by a professional advisor, did not act on it and this failure to act ultimately led to my client’s job loss.

This went to the heart of our claim for unfair dismissal.

The mistake? We should never have know of the existence of this document, never mind come into possession.

3. Failing to settle a case

This case involved a number of employment related claims at the WRC (Workplace Relations Commission). But there was also a personal injury claim in being.

The HR representative for the other side (the employer) recognised that our case was a very strong one and the signals from the Adjudicator was that they would be well advised to talk to us with a view to settling. We were well ahead.

We took a break and negotiated for a little bit and there was not a huge difference between us in the end about the money stuff but we did not agree.

The mistake, in my view, was the the HR representative failed to recognised that if the case was settled it would have been on the basis that all claims arising from the employment were settled.

This would have included the Personal Injury claim. This is very significant.

This would have been a great piece of work for his client, the employer, and would have given him a great deal of comfort and certainty. Personal injury claims, if they go against you, can be expensive.

But the HR person seemed unable to recognised this value, or did not have the competence or confidence to do so.

A relatively small amount of extra money would have settled the whole shooting match-that is, all claims arising from the employment, including the personal injury claim.

Instead the hearing went ahead and we won a decent award. And the Personal Injury claim is still in being and will be pursued.

Conclusion

We all make mistakes but the best thing we can do is learn from them, file away the lessons, and move on with confidence that we will not make the same mistakes again.

Hopefully I will avoid these 3 mistakes that I came across in the last 10/12 months.

Categories
Employment Claims Workplace Relations Commission

‘Complicated’ Employment Law Cases-Avoid This Common Mistake

If I had a euro for every time an employee told me they had a ‘complicated case’ I would have a nice little stash.

My experience is that most employment cases, and most legal cases, come down to one or two very specific issues. These are the issues on which the entire case stands or falls.

Prove this one or two things and you win; fail to do so and you lose. It is nearly always that simple. The rest is window dressing and so much hot air and bluster.

Employees who tell me they have a ‘complicated case’ fall into one of a few possible categories, the most common of which is they are not sure whether they have a case at all or not.

By ‘case’ I mean a stateable case/justiciable claim/cause of action known to the law. A breach of contract. Or a breach of an employment right. Or a breach of a constitutional right.

A proper bone with meat on it.

Grievances, no matter how many, are probably not going to be enough.

Often what the employee has is a sense of grievance or unfairness or injustice, a sense of ‘this can’t be right’, and a whole pile of issues or complaints gathered up over a period of time.

But they are not actually sure whether the whole lot amounts to a ‘hill of beans’, or a genuine claim or cause of action.

Years ago, when I was heavily involved in retailing, I could walk into a convenience store and get a good feel for the turnover by checking a few key metrics:

  1. How many Irish Independents were sold on a daily basis?
  2. How many boards of Brennans white pans were delivered?
  3. How much milk was supplied.

Once I got a good handle on these figures I could estimate, with a good deal of accuracy, the weekly turnover. Most good retailers could, to be honest.

The same applies to what appears to be an allegedly complex,complicated legal problem. A good lawyer will strip away the trimmings in no time flat and identify the one or two issues that form the basis of any claim.

If he/she cannot identify the issue(s) you can rest assured it is not because it is a ‘complicated’ case. It’s because there is no case.

Not too long ago I was involved in a case at the Workplace Relations Commission in which I received a submission from the other side.

It was impressive. If you are impressed with paper. And folders.

The submission comprised in excess of 15 pages and 147 pages of appendices.

Yes, 147 pages.

My submission was 8 pages.

Yes, 8 miserable pages.

But my 8 pages had a few good things going on:

  1. I addressed the issues that had to be addressed in the case
  2. The adjudicator was happy because I made it really easy to read
  3. I addressed the facts
  4. I addressed the law
  5. I said why my client should win and told the adjudicator what I wanted him to do and told him about the law that supported this request.

Let me give you an example or two.

If I have a client who claims to have been unfairly dismissed by reason of redundancy he needs to prove one or two things:

  1. It was a ‘sham’ redundancy and/or
  2. He was unfairly selected.

Other issues like performance, conduct, loyalty, illness related absence, disciplinary record, discrimination, bullying are irrelevant to the case.

Likewise, if an employee claims to have suffered a psychological/psychiatric personal injury in the workplace by reason of workload or stress or bullying or harassment she will need to show:

  1. She has suffered a recognised psychological injury
  2. The employer’s negligence caused that injury
  3. The injury was forseeable and the employer did not act as a reasonable employer would in the circumstances.

If she proves these things she will win, if not her case is almost bound to fail.

If an employee is claiming to have been discriminated against in the workplace he will have to prove facts from which a reasonable inference of discrimination can be drawn.

But to get out of the starting gate he will have to prove these facts first and show he has a ‘prima facie’ case. Only then does the burden of proof shift to the employer with the consequence that the employer has to prove otherwise.

However, if the employee cannot first prove the ‘prima facie’ case the employer has nothing to do as the WRC adjudicator will find the employee has failed to discharge his burden of proof in the first instance.

And the discrimination has to fall into one of the 9 grounds of discrimination.

If it doesn’t then it is not discrimination. And the case will fail.

Conclusion

They say a great story can be told by a simple formula. Like ‘dog chases cat up a tree, cat gets rescued’.

Or ‘boy gets girl, boy loses girl, boy gets girl again’.

These are uncomplicated stories. But incredibly successful down through the centuries.

In a similar way most legal, and employment law, cases, can be stripped down to bare bones and the issue(s) are visible.

If they’re not, maybe you don’t have a case.

But don’t blame the complexity, or the ‘complicated case’. Because it might not be complicated at all when you strip it down to the bare essentials.