FULL RECOMMENDATION
SECTION 77(6), EMPLOYMENT EQUALITY ACT, 1998 PARTIES : BORD IASCAIGH MHARA - AND - A WORKER (REPRESENTED BY ROSARIO LEE & CO SOLICITORS) DIVISION : Chairman: Mr Flood Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Time limit.
BACKGROUND:
2. The worker referred her case to the Labour Court on the 28th of May, 2002. Submissions were received from both parties. The Court investigated the case in accordance with Section 77(6) of the Employment Equality Act, 1998, on the 21st of January, 2003. The following is the Court's decision:-
DECISION:
The Court is requested to consider an application by the complainant for an extension of time to bring a complaint under Section 77(6) of the Employment Equality Act, 1998, (the Act).
Section 77(5) of the Act states that the complainant must refer a claim for redress in respect of discrimination or victimisation within six months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
Section 77(6) of the Act allows for an extension of the 6 months time limit for referring a case to a period not exceeding 12 months, where the Court is satisfied that exceptional circumstances prevented the complainant’s case being referred within the time limit of 6 months.
The Court in this case was provided with written submissions from both parties, which it has carefully considered.
Findings
The complainant sought legal advice during the 6 months in question and her legal advisors wrote to her employer on the 14th November, 2001, making a number of allegations. In the same letter of the 14th November, 2001, it was stated that the complainant had instructed her solicitor to instigate proceedings against the Company for compensation and damages.
It is clear that not only did she have legal advice available to her, within the 6 months specified in Section 77(5) of the Employment Act, 1998, but that she was actively processing her claim.
Despite an exchange of correspondence between the Company and the complainant’s legal representatives it would appear that the complaint form to the Labour Court was not prepared until the 24th May, 2002, and was not received in the Court until the 28th of May, 2002. Beyond the fact that there was an exchange of correspondence the complainant has not advanced any specific reason as to why the claim was not processed until that date.
It is the Court’s view that the term “exceptional circumstances” requires that the complainant shows that there was some serious issue or event, which prevented the complainant referring the complaint. In this particular instance, the Plaintiff had sought legal advice and her legal advisors had written within the six-month time period intimating that they were bringing a claim. The fact that correspondence was continuing between the claimants legal advisors and the Company would not be sufficient in the opinion of the Court to support the argument that there were exceptional circumstances preventing the complainant from referring her claim.
For the above reasons the Court finds that the complainant has not shown that exceptional circumstances existed that prevented her from referring her complaint within the 6-month time limit as required under the legislation and, therefore, her
application for an extension of the time allowed under Section 77(6) of the Employment Equality Act, 1998, fails.
In the circumstances, the Court does not have to consider whether the fact that the complaint was not lodged until the 28th of May, 2002, was outside the twelve-month time limit. The Court notes that in its submission the Company stated that the last occasion on which the complainant attended her place of employment was the 25th of May, 2002. If that were correct, it would appear that the last act of discrimination may have taken place prior to that date. If that then were the case, obviously any application lodged on the 28th of May, 2002, would be outside the twelve months time limit. However, as stated, since the Court has already decided that there were no exceptional circumstances justifying an extension of time under Sections 77(6), the Court does not have to consider this point.
Direction
The Court is not satisfied that exceptional circumstances exist which prevented the complainant's case from being referred within the time limit provided in section 77(5) of the Act and, accordingly, the complainant's application is refused.
Signed on behalf of the Labour Court
Finbarr Flood
18th March, 2003______________________
GB/MB.Chairman
NOTE
Enquiries concerning this Decision should be addressed to Gerardine Buckley, Court Secretary.