FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ABBOTT VASCULAR (REPRESENTED BY MATHESON ORMSBY PRENTICE, SOLICITORS) - AND - PATRICK BAGGOTT DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under section 77(12) of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Employer appealed the Direction of the Director of the Equality Tribunal to the Labour Court on the 18th May, 2012. A Labour Court hearing took place on the 23rd October, 2012. The following is the Court's Determination:
DETERMINATION:
The matter comes before the Court pursuant to an appeal by the Respondent against a Direction of the Director of the Equality Tribunal made pursuant to Section 77(5) of the Employment Equality Acts 1998 to 2011 (the Act).
Background
The Complainant, Mr. Patrick Baggott referred a complaint to the Equality Tribunal on 25thJanuary 2012 alleging that he was discriminated against on the age ground by the Respondent, Abbott Vascular Limited, on 11thMay 2011. As the complaint was submitted to the Equality Tribunal more than 6 months but less than 12 after the alleged discriminatory act occurred the Complainant by letter of 8thFebruary 2012, sought an extension of the time limit pursuant to Section 77(5) of the Act. In the letter he states:-
- “Due to current economic conditions prevailing in Ireland I have had to move household to the USA. This involved selling property, divesting interests and numerous other involved factors required to re-locate to another country. This entire process has consumed much of my time and pushed the requirement to file the complaint beyond the six month limitation to file such a complaint.”
- “The complainant has established to my satisfaction than the delay in referring this complaint was reasonable in the circumstances. I therefore direct that an extension of time to twelve months for referral of a complaint be given in this case.”
In line with the normal practice of the Court, parties are referred to as they were at first instance.Hence Abbott Vascular will be referred to as “the Respondent” and Mr. Patrick Baggott will be referred to as “the Complainant”.
The Complainant did not attend and was not represented at the hearing of the appeal.
Summary of the Respondent’s position
Mr. Paul Glenfield, Matheson Ormsby Prentice, Solicitors, on behalf of the Respondent, submitted to the Court that the Equality Officer erred in fact and/or in law in allowing the said extensionand contended that this decision should be reversed.
Among the cases cited byMr Glenfield on this point is the decision of Laffoy JinMinister for Finance v CPSU [2007 ELR36] in which the Judge considered an application to extend a time limit underthe Employment Equality Act 1977.In this regard,the Judge considered the provisions of the Statute of Limitations Act 1957 and held that the onus on a complainantin seeking to extend the time within which to bring a claim was to establish not only the reasons which explained the delay,but also that those reasons afforded a justifiable excuse for it.In the present case it is accordingly submitted that the Complainant must not only show that he moved to the USA following his dismissal,but also why this prevented himfromlodging his claim in time.
Mr. Glenfield stated that this reasoning was followed by this Court inA Bank v A Worker [Labour Court Determination EDA104]in which this Court referred to the case ofCementation Skanska (Formerly Kvaerner Cementation) v Carroll [Labour Court Determination WTC0338].In the former case,this Court noted that the"irreducible minimum"required under this test was twofold,i.e.,that the Complainant could show that there were reasons which both explained the delay and afforded an excuse for the delay.
Mr. Glenfield submitted that the Complainant failed on both these tests. He said that even if the Complainant had reasons to explain his delay, it could not reasonably be concludedthatthose reasons afforded a justifiable excuse for the delay. He stated that the claim form completed by the Complainant was available online and would not take much time to complete. Secondly,the Complainant did not state when he moved to the USA, nor when he decided to move to the USA. He simply confirmed that the entire process"consumed much ofmytime and pushed the requirementtofile the complaint before the six month limitationtofile suchacomplaint".Mr. Glenfield submitted that as the Complainant did not state this when filing his complaint andit is unclear whether or not he was even aware that his complaint was statute-barred.
Decision of the Court
The Court has considered the oral and written submissions made on behalf of the Respondent. In the absence of the Complainant, no evidence was presented on his behalf. The Court therefore relies upon the details outlined in the Complainant’s letter dated 8thFebruary 2012, submitted to the Equality Officer and included in the Respondent’s submission.
The Court has applied the test formulated inCementation Skanskato the Complainant’s explanation for the delay in referring his claim to the Equality Tribunal. It has considered the decision of the High Court inO’Donnell v Dun Laoghaire Corporation [1991 ILRM 301]where Costello J indicates that the test is an objective one and pointed out that a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The Judge pointed out that the reason relied upon must excuse the delay on an objective standard and he 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”.
Hence, in considering the within application, the Court should ask itself if a reasonably diligent person, having the same state of knowledge of the material facts as the Complainant, would have delayed in pursuing a claim under the Act for the reasons advanced by the Complainant.
Having regard to all the circumstances of the case the Court has concluded that it must answer that question in the negative.
Accordingly, the Court cannot accept that the grounds advanced by the Complainant for not having presented his claim on time either explains the delay or excuses the delay. Accordingly the Court cannot accept that reasonable cause has been shown to justify an extension of the statutory time limit.
Determination
Having regard to the findings set out above the within appeal is allowed and the Decision of the Equality Officer is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th November, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.