FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : DUNDALK INSTITUTE OF TECHNOLOGY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - COLLETTA DALIKENI DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal under section 77(12) of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Employer appealed the decision of the Equality Officer to the Labour Court on the 5th April, 2012. A Labour Court hearing took place on the 26th 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 that was made pursuant to Section 77(5) of the Employment Equality Acts 1998 to 2011 (the Act).
Background
Ms. Colleta Dalikeni referred a complaint to the Equality Tribunal on 15thAugust 2011 alleging that she was discriminated against on the race ground by the Respondent, Dundalk Institute of Technology between June 2010 and 4thFebruary 2011. As the complaint was submitted to the Equality Tribunal more than 6 months but less than 12 after the alleged discriminatory acts occurred Ms. Dalikeni by letter of 19thSeptember 2011, sought an extension of the time limit pursuant to Section 77(5) of the Act.
On behalf of the Director of the Equality Tribunal a Direction was issued in the following terms:
- 'It is my opinion that the complainant has established that there was reasonable cause for the delay in referring her complaint. I, therefore, direct an extension of time in which to refer a complaint to twelve months in this case.'
In line with the normal practice of the Court, parties are referred to as they were at first instance.Hence Dundalk Institute of Technology will be referred to as “the Respondent” and Ms. Colleta Dalikeni will be referred to as “the Complainant”.
Summary of the Respondent’s position
Ms. Maeve McElwee, IBEC on behalf of the Respondent submitted to the Court that reasonable cause was not sufficiently demonstrated to justify the extension of the time limit and accordingly submitted that the Director of the Equality Tribunal erred in allowing the said extensionand contended that this decision should be reversed.She contended that the Complainant's reasons for late submission of her claim under the Acts do not present any semblance of a "cogent reason" for the granting of an extension of the time limit prescribed by Section 77(5) of the Acts.
Ms. McElweestated that the Complainant requested the Tribunal to accept late submission of her claim on the basis of two main points:
- •The claimant's complaints were under investigation by the respondent and it was her belief that lodging a claim to the Tribunal would detract attention from the investigation.
•As a result of the process, the claimant suffered ill health and is out of work on medical advice.
She submitted that these reasons cannot be accepted by the Court as constituting 'reasonable cause' as per section 77(5)(b) outlined above and cited a previous Decision of the Equality Tribunal in the case ofMurray v Boxmore Plastics Ltd E2007-053. In that case Ms Murray lodged a complaint alleging discrimination when she was unsuccessful in her application for the position of Group Leader. The Equality Officer considered the date of alleged discrimination. Ms Murray was informed in or around 6thFebruary 2004 that she had not been successful. The Equality Officer found that the six-month time limit concluded no later than 5thAugust 2004 and the complaint was therefore out of time as it was not lodged until 30thNovember 2004. Ms Murray was asked at the hearing if she had any evidence for reasonable cause to extend the time limit. It was submitted that she had properly followed internal grievance procedures and waited for the outcome of that process in the hope the matter would be resolved. The Equality Officer did not accept this argument. The matter complained of was the outcome of the interview process, which concluded no later than 6thFebruary 2004. The grievance procedure was a separate process, undertaken in accordance with the Respondent's policies. She was satisfied that the complaint regarding the interview was out of time.
Ms. McElweestated that in the current case the Complainant was fully aware of the timeline set out for the investigation process. She had the advice of her solicitor throughout and therefore cannot claim that she was unaware of the legislative requirements. The Complainant has stated that one of her reasons for not submitting her claim earlier was to avoid distracting from an ongoing disciplinary issue of plagiarism. The Respondent submits that this complaint from the Complainant about a number of her students had been fully investigated, findings produced and the process concluded in May 2010. Therefore, the Complainant could not rely on this issue to support her case for an extension of the time limits.
Finally, Ms. McElwee disputed the assertion that there was a delay on its part in respect of the investigation. She stated that the Complainant had not been continually absent on sick leave as appears to be suggested in her submission to the Equality Tribunal. She questioned the Complainant’s capability to participate fully in the investigation of her complaints through the internal process agreed with her representatives while at the same time being too unwell to lodge her complaint with the Equality Tribunal within the defined time limits.
Among the cases cited byMs. McElwee in support of the Respondent’s position were the Labour Court's DeterminationsCementation Skanska v A Worker WTC/03/44andElephant Haulage Ltd v Mindaugas Juska EET082, where the Court issued its view on what constitutes 'reasonable cause' for an extension of the time limits in relation to a referral of a complaint. Where the Court held:-
- '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.'
Ms. McElwee also cited the Court's decision ofDepartment of Finance v IMPACT [2005] ELR 6when it held that the existence of 'reasonable cause' alone cannot avail the applicant. A claimant must also show that the reasonable cause operated so as to prevent her from referring her claim in time.
Ms. McElwee disputed the Complainant’s reasons for the delay and held that the Complainant has not provided any evidence beyond her own assertion that lodging a claim to the Tribunal would detract attention from an on-going investigation (which had in fact concluded in May 2010). She contended that 'illness' should not qualify as a persuasive reason for
granting an extension of time limits, in any event such illness did not interfere with her ability to participate in the internal investigation.
Summary of the Complainant’s position
Ms. Anne Lynn, Hayes Solicitors on behalf of the Complainant submitted that the reasons why the Complainant had not submitted her claim under the Acts on time was because:-
- •she believed that the Respondent was making efforts to address the alleged discrimination in May 2010;
- •she was involved in a formal investigation, which commenced in March 2011 following her formal complaint in February 2011 and had been waiting and providing the Respondent time to address these issues;
- •she was suffering from ill health as a result of the acts and/or omissions of the Respondent , and in particular the failure of the Respondent to progress the formal investigation in a timely manner;•she only decided to refer a complaint to the Equality Tribunal when she was no longer assured that the issues which she had raised were being addressed.
Ms. Lynn submitted that the delay was relatively short, and that the reasons furnished were sufficiently cogent to account for it and were attributable to the Complainant’s desire to afford the Respondent every opportunity to address the alleged acts of discrimination and victimisation. Furthermore she stated the Complainant had become ill in January and February 2011 as a consequence of the actions and/or omissions of the Respondent in dealing with the allegations. Furthermore, Ms. Lynn stated that the Respondent's investigation which commenced in March 2011 was to take one month but was not completed until January 2012. As a result of the long drawn out process to address the issues she had suffered ill health and was out of work on medical advice.
Ms. Lynn also disputed the Respondent’s assertion that the Complainant was legally advised by a solicitor throughout. She was represented by the Teachers Union of Ireland initially, at the time when she made her complaint to in March 2011.
Ms. Lynn cited Labour Court's DeterminationsCementation Skanska v A Worker WTC/03/44andElephant Haulage Ltd v Mindaugas Juska EET082in support of the Complainant’s position.
Among other cases cited Ms. Lynn referred to the High Court inO’Donnell v Dun Laoghaire Corporation [1991 ILRM 301]where Costello J held that in considering whether there was 'good reason' for extending time in the context of an application 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.'
Decision of the Court
The Court has considered the oral and written submissions made by both parties. The Court notes that in her complaint form to the Equality Tribunal the Complainant stated the following:-
- '….. I do not believe that any adequate protection will be in place to allow me continue my teaching duties in two weeks’ time. I am lodging this complaint a little late because I had hoped the current investigation would be completed on time as I was promised. It has taken longer than originally promised and I can wait no longer. I do not feel safe to continue my duties I feel vulnerable as nothing has been done to ….'
- 'The investigation is to be completed within one-month period of a signed acceptance of the Terms of Reference, or as soon as possible thereafter.'
The Court notes the commitment given to the Complainant as set out at point 3 of the Terms of Reference, signed in March 2011, that the investigation into allegations made by the Complainant that the process would be completed within one-month or shortly thereafter. In such circumstances it was reasonable of the Complainant to believe that the process would be complete before the end of the academic year 2010/2011, and at the very least before the beginning of the new one, which would have allowed the issues raised to be addressed before the commencement of the new academic year. This did not happen and the investigation was not completed until January 2012.
In all the circumstances of this case, the Court considers it reasonable that she had a certain assurance that the issues would be addressed however, at the onset of the new academic year she began to lose faith in the process and submitted her claim under the Acts.
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 there were justifiable reasons for the delay in submitting her complaint under the Acts.
Accordingly, the Court accepts that the grounds advanced by the Complainant for not having presented her claim on time explains the delay and excuses the delay. Accordingly the Court accepts 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 Court rejects the appeal and the Decision of theDirector of the Equality Tribunalis upheld.
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.