Don’t delay in bringing a claim to the WRC or you may well be out of time*
It is constantly arising that individuals are having their cases thrown out because they delayed in bringing a claim. The usual excuse is that the employee was going through an internal process and when that didn’t work out the claim was then brought to the WRC. We review a case where this argument was made and where the Labour Court again rejected that as a ground for extending time. The case is Dublin City Council and Skelly DWT212.
In that case the employer accepted that there was delays in the internal process due to the complexity of the issues involved. However, the employer argued that that did not prevent a case being referred to the Workplace Relations Commission. As part of the discussion in the Court the issue of the time limits for addressing cases was addressed by the Court.
In that case the Court stated
“The Court has consistently held 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 in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”
The Court went on to quote the case of Mobile Security Services Limited T/A Seneca Limited and John McEvoy EDA1621. The Court pointed out that the complainant in that case had sought to apply for an extension of time on the basis that he had attempted to resolve his dispute through the internal procedures of the respondent.
The Court held that the complainant had not thereby established reasonable cause for his delay where it stated:
“The Court finds that the issue that arose in the course of those meetings were in the nature of Industrial Relations grievances that contained no indication that a complaint under the Act was either imminent or in contemplation. They amounted to an alternative way of resolving the issue in dispute and did not form part of a procedure that acted as a prelude to commencing a complaint under the Act. Instead, the complainant decided to forgo the option of proceeding under the Act and instead chose to try to settle the matter in dispute through other means. When that did not work out to his satisfaction, he then sought to rely on his choice to justify the delay in bringing proceedings under the Act”
Now that is the position as regards employees in many cases.
It regularly arises in the WRC that employers contend that an employee should have gone through the internal grievance procedure before issuing a complaint to the WRC. There is absolutely no requirement for an employee to do so. To the extent that an employee does so they may well act to their detriment in delaying a claim being submitted.
Once a claim is submitted to the WRC that does not act as a bar or restriction on an employer seeking to address the issue internally. It does not stop an employee also raising an internal grievance and having matters dealt with under the internal grievance procedure. Issuing the claim to the WRC simply stops the clock.
There had been a proposal by some employer organisations when the Workplace Relations Act, 2015 was going through the Dail to the effect that employees should have to go through the internal grievance process first before submitting a claim to the WRC. The Dail records clearly set out that the then Minister rejected that as a proposal.
What can be taken from this case and it is one which regularly arises is
- An employee who believes they may have a complaint should issue the claim to the WRC.
- The employee can at the same time submit a grievance to be dealt with under the internal grievance procedures.
- 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 processes.
This issue is constantly arising and arose again in case ADJ-00027335. In this case the Adjudication Officer looked at the issue of “reasonable cause”.
The Adjudication Officer set out that the established test for deciding if an extension should be granted for reasonable cause was formulated by the Labour Court in DWT0425 where the Court considered “Reasonable Cause”. The Adjudication Officer pointed out that this was subsequently raised in the case of Salesforce.com –v- Leech EDA1615 where the Labour Court held;
“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 offered and 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 claimant would have 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”.
It is helpful that the WRC has again set out the law on this issue.
*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 proportion or percentage of any award or settlement.