26/08/2022

Cautionary Reminder of Strict Time Limits to Submit a Claim to the WRC

A recent decision of the Workplace Relations Commission serves as a cautionary reminder of the standardised time limit of six months for making a complaint and initiating proceedings in many employment matters, which time period can be extended to twelve months where reasonable cause is shown.  Section 41(6) of the Workplace Relations Act, 2015 states:

“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 six months beginning on the date of the contravention to which the complaint refers”.

An Adjudication Officer may entertain a complaint or dispute to which this section applies which is presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than six 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.  This means that, at best, the time limit for submitting a claim to the WRC may be extended to twelve months where this reasonable cause is shown.  

The test for determining reasonable cause as set out in the case of WTC0338 being the case of Cementation Skanska -v- Carroll where it was established that 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 and there must be a causal link between the circumstances cited and the delay. Also the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present, he/she would have initiated the claim in time.  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.  The Court will also consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case.  Generally speaking, satisfying the reasonable cause test and convincing an Adjudication Officer to accept the excuse for the delay is not an easy task. As a good starting point, employees and their advisors should never run the risk of filing a statutory claim outside of the time limit as the burden of proof will be on them to show reasonable cause and the employer is likely to strongly oppose that application in most cases.

A common excuse for failure to lodge a claim to the WRC within the statutory six month period is that the employee was going through an internal grievance process and when that process did not work in their favour, submitted a claim to the WRC.  The case of Dublin City Council -v- Skelly DWT212 clearly sets out:

“that a Complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six month time limit provided for generally … for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”.  

In that regard the following key points arise:

  • An employee who believes they may have a complaint should issue the claim to the WRC;
  • The employee can at the same time submit an internal grievance to their employer to be dealt with under the internal grievance procedure;
  • It is not an excuse or defence for an employer to say that an employee should have gone through the internal grievance procedures first;
  • There is one exception and that is in the case of a constructive dismissal where before an employee resigns, they must go through the internal grievance process

The recent WRC decision on this subject involved a group of four advisors at the University of Limerick who sought to recover sums of over €50,000.00 each for holiday pay they say they ought to have been paid for a period of 17 years when their employer was incorrectly treating them as contractors as opposed to employees.  The Workplace Relations Commission has dismissed their claims under the Organisation of Working Time Act 1997 and has ruled that it does not have jurisdiction to decide on matters more than a year old.  The Complainants argued that wrongly identifying them as self-employed had “actively prevented” them from receiving their annual leave or public holiday entitlement for 17 years previously and sought to rely upon the decision of the European Court of Justice in King -v- Sachs Window, which granted 13 years of vacation be paid to an employee wrongly classified as being self-employed. They also maintained that European jurisprudence had precedence over national law and that the WRC should set aside statutory deadlines. However, the Adjudicating Officer determined that the precedent established in the European Courts could not be applied in this case.  

This case is a useful reminder to Complainants that the best course of action is always to lodge the complaint to stop the clock under the statute to safeguard their options and, given costs orders are generally not made against Complainants, thereafter withdraw the application if necessary rather than run the risk submitting out of time.

For more information please contact Marie Hynes, Senior Associate, or e-mail info@aclsolicitors.ie  

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