This case involved a lorry driver who brought a number (6) of complaints against his former employer, a fuel company. The complaints included unfair dismissal, organisation of working time act breaches, payment of wages, and the minimum wage.
The problem he faced, however, was whether he was out of time in submitting his claims or not.
He lodged his complaints some 11 months and 12 days after his last day of work. The employer’s representative raised a preliminary objection to the hearing of the complaints on the basis that they were out of time and statute barred being outside the 6 months time period allowed.
The lorry driver claimed he could show ‘reasonable cause’ for the delay.
If this was the case the adjudicator had the jurisdiction to extend the period within which he could bring his complaints to 12 months and the driver’s complaints could be heard. Otherwise, he would not get off the starting block.
This gives rise to the question of what is accepted as ‘reasonable cause’.
The employee argued that he had suffered ill-health as a consequence of his working conditions and this ill health prevented him from submitting his complaints immediately after he left the employment. He submitted a medical report to support this argument.
He gave evidence that he had suffered with his mental health after leaving the job and his return to fitness to the point where he could submit the complaints was a gradual one.
Under cross-examination, however, he gave evidence that he returned to employment quickly after leaving the respondent’s employment. He also confirmed that he was not referred to a specialist to deal with his health issues.
The employee’s GP was called to give evidence and confirmed that his patient had suffered from an anxiety condition. Under cross examination he confirmed that not all appointments at which he met the driver were related to anxiety, but to his general health.
The driver’s position was that he had demonstrated a link between the ill health he claimed and his failure to submit the claim within the prescribed 6 months. For this reason he was claiming he was entitled to the 12 month period within which to submit his claim.
The respondent’s legal team argued that he had failed to show reasonable cause for the delay and pointed to the fact that he had taken up new employment during the 6-month period after leaving the fuel company.
They also pointed out that he had not been referred to a specialist and nothing had prevented him from instructing a solicitor to submit the complaint.
They argued that the medical report opened to the hearing stated that the medical issues resolved within 6-8 months but it took the employee a further 3 months to submit the complaints to the WRC.
The adjudicator referred to the time limit set out in section 6(6) of the Workplace Relations Act 2015 which provides…
“…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.”
Section 6(8) provides 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.”
He referred, too, to the well-established test set out in the Labour Court determination in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338, which held:
“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 adjudicator noted that the medical report stated that the employee was back to normal after 6-8 months. But a further 3 months elapsed before the complaints were submitted to the WRC.
For this reason, the adjudicator held that the employee failed to show ‘reasonable cause’ and he did not have jurisdiction to hear the complaints.
Minimum Wage Act complaint
There was a further complaint submitted by this employee under the National Minimum Wage act. This act obliges the employee to request a statement of his average hourly rate of pay in respect of the relevant pay reference period or the employer had not provided it within the time allowed.
The employee’s problem in this regard was that he had submitted his complaint before the time period allowed to the employer to respond to him had elapsed.
The employer argued that as the employee had failed to follow the steps set out in the National Minimum Wage Act the WRC did not have jurisdiction to hear the claim.
Section 24(2) of the National Minimum Wage Act provides:
“The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee’s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41 of the Workplace Relations Act 2015—
(a) unless the employee—
(i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or
(ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information”
The decision of the adjudicator was he could not hear the claim as the employee had failed to follow the required steps in the relevant act.
Of the 6 complaints submitted by the lorry driver all were ruled out by the WRC adjudicator after preliminary objections from the employer’s legal team.