FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 AND 2004 PARTIES : ELEPHANT HAULAGE LIMITED (REPRESENTED BY ESA CONSULTANTS) - AND - MINDAUGAS JUSKA (REPRESENTED BY PC MOORE SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal under Section 77(12) of the Employment Equality Acts, 1998 and 2004
BACKGROUND:
2. The Worker/Claimant referred his case to the Labour Court on the 12th September, 2007, in accordance with Section 77(12) of the Employment Equality Acts, 1998 and 2004. A Labour Court hearing took place on the 8th April, 2008. The following is the Court's determination:
DETERMINATION:
Background:
The Complainant left the employment of the Respondent on 23rd of February, 2006, following a physical altercation with another employee. He had worked for the Respondent since 14th November, 2005.
He submitted a case to the Employment Appeals Tribunal ("the EAT") on 10th March, 2006, and shortly thereafter engaged the services of a Solicitor Mr Michael Coghlan ("Mr. Coghlan") of Coghlan McNally, Solicitors, 11/13 Sundrive Road, Kimmage, Dublin 12, a Solicitor experienced in employment law. An EAT hearing was set up for 26th July, 2006.
On 25th July, 2006, the Complainant changed his legal representation to Mr. Richard Grogan ("Mr. Grogan") of P.C.Moore & Co. Solicitors, 17 South Great George's Street, Dublin 2. Mr. Grogan subsequently sought and obtained an adjournment of the EAT hearing. He later withdrew the case from the EAT.
At around the same time, the Complainant filled in forms relating to complaints under various statutes against the Respondent with P.C.Moore & Co., Solicitors, who processed these cases and also informed the Respondent that they were now representing the Complainant.
The Complainant’s application was received by the Equality Tribunal on 13th September, 2006, at which point it was out of time, by some twenty two days, on the basis that the six-month period since the last alleged act of discrimination had expired on 22nd August, 2006.
On the 24th November, 2006, Mr. Grogan wrote to the Equality Tribunal applying for an extension of time under Section 77(5)(b) of the Acts from 6 to 12 months.
This application was notified to the Respondent on 6th December, 2006. No response was received to this notification and having considered the matter, an Equality Officer, on 2nd August, 2007, decided to grant the extension of time sought.
The Respondent appealed this Decision under Section 77(12) of the Acts on 4th September, 2007. A Labour Court hearing was held on 8th April, 2008.
Complainant’s Arguments:
1. The Complainant has limited English.
2. When P.C.Moore & Co., Solicitors, came on record for the Complainant, five of the six months allowed had elapsed. Although Mr. Grogan met the Complainant and gave him forms to fill in under various statutes, the importance of being within time was discussed and the Complainant was urged to fill in and return the forms “immediately.” The following week, Mr. Grogan went on holidays for three weeks. As he has very many cases involving non-national litigants, the matter slipped his mind until the Complainant returned the relevant forms on 7th September, 2006. The forms had been pre-dated 26th July 2006, the date on which the Complainant met the Mr. Grogan for the first time. It was, however, not received in the Equality Tribunal until 13th September 2006. Mr. Grogan admits that, in the circumstances, he should have pushed his Client more vigorously and attended to the matter more urgently, but it is unfair that his Client should suffer for this.
3. The application was only out of time by twenty-two days and the Respondent has suffered no prejudice. The breach should be treated as a purely technical one and the time extension allowed.
Respondent’s Arguments:
1. The Complainant was not slow in taking proceedings against the Respondent nor in engaging a professional law firm, Coghlan McNally, Solicitors (Mr. Coghlan) which, five months on, he chose to dismiss in favour of another professional law firm P.C.Moore& Co. Solicitors (Mr. Grogan).
2. At the time the Complainant left the Company, he communicated effectively in English with various employees of the Company. He also filled out forms in English and was aware of his rights.
3. When he went to P.C. Moore & Co., Solicitors, a very experienced firm in this field, he still had ample time to pursue his case in time, as had his Solicitor there.
4. The Labour Court has made several rulings in cases like this one, refusing extensions of time.
5. P.C. Moore & Co., Solicitors were aware, via a fax from the respondent on 26 July, 2006, that another firm of Solicitors, Coghaln & McNally, were and had been representing the Complainant.
Facts found by the Court or admitted:
1. The six-month time limit expired on 22nd August, 2006, and papers were not lodged with the Equality Tribunal until 13th September, 2006.
2. The Complainant had expert legal advice at all times, albeit that he changed solicitors after five months.
3. The Complainant met for the first time with his second Solicitor, Mr Grogan, on 26th July, 2006, at which stage he was give forms to fill in and return “immediately”, but the forms were not returned to PC Moore & Co., Solicitors until 7th September, 2006. There was no contact between the firm and the Complainant with regard to the Equality Tribunal application in the intervening period.
4. The Appellant/Respondent informed P.C. Moore & Co. Solicitors, by fax on 26th July, 2006, that they were not the firm of Solicitors on record for the then EAT case (which was adjourned and subsequently withdrawn).
5. P.C.Moore & Co., Solicitors, applied to the Equality Tribunal for an extension of time on 24th November, 2006, citing the Complainant’s limited English, lack of knowledge of the procedures, as well as the fact that his Solicitor was on holidays and that time was needed, as reasons for missing the deadline to complete the paperwork.
6. The Complainant’s case to the Equality Tribunal was one claiming discrimination on grounds of race.
- The Applicable Law
The 2004 Act reduced the requirement on a Complainant from having to prove “exceptional circumstances” to showing “reasonable cause” why he/she did not lodge his/her claim within the time limit of six months. Thus, when the Court is considering the granting of an extension the bar to be overcome is a much lower one than hitherto.
The Court, in considering the question of “reasonable cause” for delay in a time-limited application in the case ofDepartment of Finance and IMPACT, CPSU &PSEU,Decision No. EET042, dated 29th July 2004, noting the High Court’s view on extending time where there is “good reason to do so” as expressed in the case ofO’Donnell v Dun Laoghaire Corporation[1991] ILRM 301 where Costello J stated as follows: -
“The phrase “good reason” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.
Also, in regard to the lower requirement of “reasonable cause”, the Court’s view, as expressed in the cases of“Cementation Skanska and various individual workers(Det. No. DWT 0339 and others),under the Organisation of Working Time Act 1997, was set out as follows: -
- "In considering if reasonable cause exists, 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, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression "reasonable cause" appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant's failure to present his or her claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
- The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. 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 should consider if the respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.
Findings of the Court:
The agreed date of the alleged act of discrimination was 23rd February, 2006. In early March, the Complainant engaged the services of a Solicitor experienced in employment law, Mr Coghlan, who pursued a case on his behalf to the E.A.T. under the Unfair Dismissals Acts.
It was nevertheless still a month before the expiry of the time limit when the Complainant left Mr. Coghlan and engaged P.C. Moore & Co., Solicitors, a firm also experienced in employment law which was aware that there was a time limit and, as was told to the Court, told the Complainant on 25th or 26th July 2006 to “fill in the forms and return them immediately”. Shortly afterwards, the Solicitor concerned Mr. Grogan, went on holidays.
The Complainant did not return the forms to PC Moore & Co., Solicitors until 7th September, 2006, at which stage the matter was out of time. This was wrong on the Complainant’s behalf but responsibility should have been taken by the Solicitor concerned, as the Complainant is a foreign national and has limited English. A Solicitor, however, should have so known and acted or advised the Client accordingly. Papers were prepared and received by the Equality Tribunal on 13th September, 2006, twenty-two days out of time. The Complainant's Solicitor did not apply for a time extension until 24th November, 2006, by which time the claim was three months out of time.
It could be argued that the Complainant's Solicitor, Mr. Grogan, should have even more strongly expressed the importance of the time limit to the Complainant, that he must have known that there was a previous professional legal involvement on the Complainant’s behalf (from the Company’s fax to him telling him he was not the Solicitor on record at the E.A.T.) and that he did not seek an extension of time for over a further two months. The Court, however, in looking at the application, finds that: -
- While the delay was not very long, the Complainant was professionally legally represented all along by two law firms having knowledge of employment law and, having been told to return the papers immediately, his unexplained failure to do so for over six weeks in the awareness of a time limit was a careless and unreasonable cause of delay.
- No explanation was forthcoming to the Court in two important regards, namely, the first as to why, when the Complainant first met Mr. Grogan on 25th or 26th July, 2006, was given the forms and told to complete them "immediately," he did not do so there and then, thus avoiding any difficulty with the time limit, and the second as to why neither P.C.Moore & Co., Solicitors, nor Mr. Grogan did anything to contact the Complainant to return the completed forms to them urgently in view of the expiring time limit over the period of six weeks from 25th or 26th July, 2006 to 7th September, 2006.
- In response to direct questioning Mr. Grogan told the Court that when he met the Complainant on 25th or 26th July, 2006, and gave him the forms to complete he impressed upon the Complainant and explained to him the urgency of completing the forms and returning them because of the time limit due to expire almost a month later. Mr. Grogan further told the Court that although the Complainant is a foreign national with limited English, he, Mr. Grogan was satisfied at that time that the Complainant fully understood both the reason for and the importance of urgently completing the forms. Mr. Grogan told the Court that he was thus satisfied from his long experience of acting for many foreign national clients.
While in general a case should be heard in full, and also while "the reasonable cause" bar is not one set high, in the particular circumstances of this case the Court allows the appeal of the Respondent, overturns the Decision of the Equality Officer and does not grant the extension sought.
Signed on behalf of the Labour Court
Raymond McGee
6th October, 2008______________________
CON/MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.