Delay in Lodging Cases

By September 30, 2020Employment Law

Delay in Lodging Cases

This issue arose in case PWD 2020 being a case of Ervia and Healy.

In this case the representative of the employer contended that the referral of a complaint to the Inspectorate of the WRC could not constitute reasonable grounds and referred to the case of Globe Technical Services Limited -v- Kristin Miller UDD 1824 where the Labour Court summarised the situation where an employee being unaware of the jurisdiction of the Workplace Relations Commission for a considerable period of time and held:

‘’It is set law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time’’.

The Court in this case stated:

‘’ The Court does not accept that the processing of an internal grievance can be considered as a cogent reason which prevented the lodging of a complaint under the Act in time. The Court is of the view that the Complainant cannot circumvent the time set out in the Act by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit’’.

The Court addressed this issue in Brothers of Charity Services Galway -v- O’Toole EDA 177 where it held:

‘’ The Court cannot accept that deploying the Respondents internal procedures operated to prevent the complainant from initiating the within complaint within the statutory time limit provided under the Acts’’.

The law on this has been very clearly stated by the Labour Court. It is still surprising that in a number of cases arguments would be raised by employers that employees should have used internal grievance procedures before lodging anything in the WRC.

The exact opposite is the position when you take account of the decision of the Labour Court in this case and in previous cases.

An employee should lodge the claims early. There is nothing to stop an employee lodging a claim telling the WRC that they are using an internal procedure and asking that the matter is put on hold pending that procedure being concluded. Equally there is nothing to stop an employer once they get a complaint from the WRC putting in place an internal procedure to investigate the complaint before the matter goes the WRC for actual hearing.

It is helpful however that the Court has again set out the law in such clear terms.

A second issue came up and that is whether an employer should advise an employee of any statutory time limits in the Act.

In this case the Court stated.

‘’ The Court cannot accept that there was any obligation on the Respondent to advise the applicant of the statutory time limit provisions of the Act’’.

The Court went on to state.

’’ The Court is of the view that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body, as held by the High Court in Minister for Finance -v- CPSU and others 2007 18 ELR36’’.

Again, it is helpful that the Court has set this out in clear terms.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.


Richard Grogan

Author Richard Grogan

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