FULL RECOMMENDATION
SECTION 77(6), EMPLOYMENT EQUALITY ACT, 1998 PARTIES : GAELSCOIL THULACH NA NOG (REPRESENTED BY ALEX WHITE B.L INSTRUCTED BY ARTHUR O'HAGAN SOLICITORS) - AND - JOYCE FITZSIMONS-MARKEY (REPRESENTED BY TONY KERR B.L. INSTRUCTED BY O'MARA GERAGHTY MCCOURT SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Time limit
BACKGROUND:
2. The worker referred her case to the Labour Court on the 15th October, 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 30th September, 2003. The following is the Court's decision:-
DECISION:
This is an application by Ms Joyce Fitzsimons-Markey (the applicant) to extend the time for making a complaint alleging that she was dismissed by her former employer, Gaelscoil Thulach Na Nog (the respondent) in circumstances amounting to discrimination. The application is made pursuant to section 77(6) of the Employment Equality Act 1998 (the Act).
The factual circumstances upon which the applicant relies can be summarised as follows:
1. The respondent employed the applicant as a Secretary. She was dismissed from her employment on 19th March 2002.
2. The applicant consulted a firm of solicitors in relation to her dismissal. By letter dated 28th April 2002, she instructed them to institute proceedings under the Act. No action was taken by the solicitors on foot of that instruction and the applicant again wrote to her solicitors on 2nd August 2002 repeating her instructions. In that letter the applicant asked that her “case with the Equality Officer be proceeded with as quickly as possible”.
3. By letter dated 27th August 2002 the applicant’s solicitors informed her of a possible conflict of interest if they continued to act in the matter in which they had been instructed. They suggested that the applicant instruct another firm of solicitors. Forms, which had been obtained from the Office of the Director of Equality Investigations, were enclosed and it was intimated that they should be used by the applicant to initiate her claim. It appears that these forms had been obtained by the solicitor from the ODEI on 20th June 2002. They were not the appropriate forms on which to initiate a claim in respect of a discriminatory dismissal.
4. By letter dated 2nd September 2003 the applicant wrote to the solicitors asking, inter alia, that her file be returned to her. On 4th September 2003 she contacted the Equality Authority and received certain advice. On foot of that advice the applicant completed the forms which she had received from her former solicitors and forwarded them to the Offices of the Equality Authority on 6th September 2003. The forms were accompanied by a covering letter from which it was apparent that her complaint related to dismissal. The form also indicated on its face that the discrimination complained of was dismissal.
5. On 11th September 2002 the applicant spoke by telephone with an officer of the Equality Authority who assured her that her complaint had been received and was still in time. The import of this conversation was confirmed by the applicant in a letter of the same date which she sent to this officer. The Equality Authority subsequently lodged the forms with the ODEI on 12th September 2002.
6. The six months time limit expired on 18th September 2002.
7. On 30th September 2002 the applicant again wrote to the Equality Authority asking for confirmation that her complaint had been lodged. She received a letter from the ODEI of the same date which informed her, inter alia, that the Labour Court was the appropriate institution with which to lodge a complaint of discriminatory dismissal.
8. Further correspondence and telephone contact ensued between the Equality Authority and the applicant. By letter dated 14th October 2002 the Equality Authority lodged a claim for redress with the Labour Court on behalf of the applicant. The form was dated 14th October 2002. The Equality Authority, on behalf of the applicant also applied for an enlargement of the time in which to bring the claim.
Submissions of the Parties.
The Applicant.
Counsel for the applicant submitted that the circumstances in which the claim came to be lodged outside the time limit were exceptional in that they were unusual and extraordinary. It was pointed out that the language employed by the Oireachtas in Section 77(6) of the Act is identical to that used at Section 8(2)(b) of the Unfair Dismissals Act 1977 (as amended by the Unfair Dismissals (Amendment) Act 1993). The Court was referred to the determination of the Employment Appeals Tribunal inByrne v PJ Quigley Ltd [1995] ELR 205in which the meaning of the expression “exceptional circumstances” was considered. Here it was held that the words meant “out of the ordinary, unusual, probably quite unusual but not necessarily highly unusual”.
The Court was also referred to the determination of the EAT inGibbins v Viking Direct Ltd UD/356/2000in which it was held that for a solicitor to allow a claim to go out of time was an exceptional circumstance which prevented the claimant lodging her claim in time.
The Respondent.
Counsel for the respondent submitted that the applicant must not only show the existence of exceptional circumstances but must only show that those circumstances operated to prevent her from lodging her claim in time. Counsel urged the Court to reject the approach adopted by the EAT inGibbinsas being excessively broad in its application. He submitted that this approach, if followed, would open the floodgates to every case in which negligence or mistake was pleaded as an excuse. Counsel relied on determinations of this Court inFML Properties and Charlotte O’Driscoll (REE 032)andBord Iascaigh Mhara and A Worker (REE 031)in which, it was suggested, an extension of time was refused in circumstances similar to those of the instant case. It was submitted that this Court should prefer its own precedents to those of the EAT.
Conclusions of the Court.
The question for determination
The question for determination in this case is whether the applicant was prevented by exceptional circumstances from bringing her claim within the time limit prescribed by Section 77(6) of the Act. That is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another. Whilst the Court has considered the earlier decisions to which it was referred, they are of limited assistance since the circumstances of neither of them correspond to those of the instant case.
Exceptional Circumstances
The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.
The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered (seeR v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ.)
Applying that understanding of the term to the facts of the instant case there is no doubt that the confluence of mishaps and errors which occurred combined to bring about circumstances which could properly be described as exceptional. However, the existence of exceptional circumstances alone cannot avail the applicant. She must also show that the exceptional circumstances operated so as to prevent her from presenting her complaint in time.
Was the Applicant Prevented from lodging her claim?
A person can be prevented from doing that which they intended to do by being given wrong information or advice (or by having necessary information or advice withheld) by one with whom they have a relationship of trust and confidence.
The correspondence which passed between the applicant and her former solicitors indicates that she was proceeding on the assumption that her claim should be brought before the ODEI. She was not told that the Court, rather than the ODEI, was the appropriate forum before which to initiate a claim based on dismissal. When the solicitors withdrew from the case they provided the applicant with the appropriate forms on which to refer a complaint to the ODEI and gave her to understand that they were the correct forms on which to initiate her claim. The fact that the applicant used these incorrect forms was a significant factor which resulted in her claim being lodged with the ODEI and not the Court. The form used did, however, indicate, (at section 6) that the discrimination complained of was her dismissal. That initial error was compounded when the Equality Authority failed to notice the true nature of the applicant’s complaint, referred it to the ODEI rather than the Court, and assured her that her complaint had been received in time.
Against that background the Court is satisfied that the applicant was induced to believe that she had gone about initiating her claim correctly and that it had been properly lodged in time. This arose from erroneous advice and misinformation which she had obtained from those upon whose advice and judgement she was entitled to rely. In the Court’s view this prevented her from lodging her claim with the Court within the time limit.
Decision.
The Court is satisfied that the test prescribed by Section 77(6) of the Act must be interpreted as contemplating the type of circumstances which arose in the instant case, the combined affect of which caused the delay giving rise to this application. Accordingly the Court holds that there were exceptional circumstances which prevented the applicant from lodging her complaint within the time limit specified in Section 77(5) of the Act. The Court extends the time pursuant to Section 77(6) and deems the applicant's complaint to be in time.
Signed on behalf of the Labour Court
Kevin Duffy
15th October, 2003______________________
LW/BRDeputy Chairman
NOTE
Enquiries concerning this Decision should be addressed to Larry Wisely, Court Secretary.