FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 AND 2004 PARTIES : DEPARTMENT OF FINANCE (REPRESENTED BY DEPARTMENT OF FINANCE) - AND - AUGUSTINE O'CONNELL DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 77(12) of The Employment Equality Act, 1998 And 2004
BACKGROUND:
2. A Labour Court hearing took place on 3rd February, 2009. The following is the Court's Determination.
DETERMINATION:
This is an appeal from a decision of the Equality Tribunal in an application by Mr Agustine O’Connell (the Complainant) for an extension of time in which to bring a claim of discrimination under the Employment Equality Acts 1998 and 2004 against the Department of Finance. The application was rejected by the Equality Tribunal on the grounds that the Claimant had failed to show reasonable cause for the delay. The Claimant appealed to this Court.
The Complainant’s case.
The Claimant was interviewed for a position within the Department of Enterprise Trade and Employment. He claims that in the course of the interview he was asked what school he attended. The Claimant formed the view that this question was discriminatory on grounds of religion.
The Complainant told the Court that he subsequently sought advice from the Equality Authority and was advised that the Employment Equality Acts 1998 and 2004 did not prohibit an employer from asking this question. The Claimant has no recollection of the form in which he addressed the question to the Equality Authority or whether it was in the course of a telephone call or a by e-mail, nor has the Claimant any record of the answer he received.
The Complainant told the Court subsequently received advice from a trainee barrister to the effect that he could make out a case of discrimination and that he could obtain an extension of time to bring his case. The Complainant presented his claim to the Equality Tribunal on 30th June 2007.
The Respondent does not believe that an extension of time is justified.
The Law.
Section 77(5) of the Act sets out a time-limit of six months within which a claim of discrimination must be presented. The subsection goes on to provided that this time-limit may be enlarged by a further six months for reasonable cause.
The test for establishing if reasonable cause is shown was set down by this Court in Determination No.0426 – Cementation Skanska and A Worker in the following terms: -
- 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.
In this case the Complainant was fully aware of the facts on which he now wishes to pursue his case immediately after the interview in question on 7th July 2006. He sought advice from the Equality Tribunal and on foot of that advice he delayed in bringing his claim until he received contrary advice some five months after the statutory time limit expired.
Notwithstanding whatever advice the Complainant was given by the Equality Authority, this could neither explain nor justify the delay. At all time the Complainant had a right to process his claim under the Act and this should have been known to him. Moreover, it is settled that ignorance of ones legal rights does not afford a justifiable excuse for a failure to bring a claim within a statutory time-limit and this general principle cannot be offset by pleading that advice was received indicating weakness in the case or the absence of a cause of action
Determination
In all the circumstances of this case the Court is not satisfied that the Complainant has shown reasonable cause on which the time for bringing his case could be enlarged. Accordingly the decision of the Equality Tribunal is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
2nd March 2009______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.