DIR-E2013-009

DIR-E2013-009

EE/2013/264

Direction under Section 77(5) of the Employment Equality Acts 1998 to 2011

Complaint by An Administrator against A Hospital under the Employment Equality Acts 1998 to 2011

Background to the complaint:

1. An Administrator (the complainant) referred a complaint to the Equality Tribunal on 31 May 2013, alleging that he was sexually harassed by an employee of A Hospital (the respondent) on and before 27 June 2012.

Provisions of the legislation:

2. Section 77(5) of the Employment Equality Acts, 1998 to 2011 states -

(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which case relates or, as the case may be, the date of its most recent occurrence

(b) On application by a complainant the Director may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such a period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

Referral of the complaint

3. The complaint was received in the Equality Tribunal on 31 May 2013. The date of the most recent occurrence of an alleged discriminatory act was 27 June 2012, which was outside the 6 month period stipulated in the Acts, but within the 12 month period for which an extension can be granted, for reasonable cause. The date of expiry for referral of the complaint was 26 December 2012.

Request for extension of time application

4.1 The complainant made an application for an extension of time for referral of the complaint in a letter dated 3 July 2013. In that letter the complainant stated that

• He had been diagnosed with Depression on 16 April 2012
• He had been on certified sick leave since 16 August 2012.
• As he was managing a mental health illness he felt it would be better to hold off until there was some improvement to formally address the matter.

4.2 The Tribunal wrote to the respondent on 4 July 2013 inviting them to submit any comments in relation to the application for an extension of time. In a letter submission dated 23 July 2013 the respondent objected to an extension of time being granted and stated the following opinions,
The complaint admits that he made a conscious decision to postpone the claim.
The complainants’ sick leave did not commence until two months after the alleged incident took place. The complaint has not provided any evidence beyond his own assertion that his illness prevented him from lodging a claim on time.
In an internal grievance process the complainant admitted that he felt well enough to return to work in January 2013 which was within the six months of the alleged incident yet still no complaint form issued.
The long length of the delay in bringing a claim and the resultant prejudice to the person named in the allegations tips the balance in favour of not extending the time frame even it “ reasonable cause “ is established, which the respondent says has not been.

4.3 The Tribunal forwarded the above submission to the complaint for his comments. In an E-Mail response received on 8 August the respondent gave his final comments in which he did not challenge any of the opinions regarding reasonable cause expressed by the respondent in their submission. He did however restate that he had decided following advice not to address the complaint until he was mentally fit and able. He did not say who this advice was from and I note that he did not allude to or provide any medical certification to support his assertion.

Conclusions

5.1 I am conscious of the requirements imposed by section 77(5)(b) of the Employment Equality Acts 1998 to 2011. This provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal.

Section 77(5)(b) of the Employment Equality Acts 1998 to 2011 provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal. In interpreting this in the instant case, I am taking into account the view of the High Court on extending time where there is "good reason to do so" in the case of O'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".

I am also taking into account the Labour Court decision in the case of Elephant Haulage Ltd v Mindaugas Juska EET082 where the Court reiterated its view (expressed for example in the case of Cementation Skanska and a Worker (WTC/03/44 Determination No. 0426)), albeit under different legislation (Organisation of Working Time Act) that "That 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 this regard the Court held that there must be a causal link between the circumstances cited and the delay and that 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 Labour Court went on to state that 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."

5.2 In this case the complaint was referred almost 5 months outside the time limit. The complainant has stated that the delay was due to the fact that he was managing a mental health illness and he felt it would be better to hold off until there was some improvement to formally address the matter.

While the complainant has not produced medical certification it is common case that he was on certified sick leave for the majority of the six month period available for referring a complaint. I am of the opinion that the complainant has shown reasonable cause for the delay.

Delegation of functions

6. The Director has duly delegated his functions to me under the Employment Equality Acts 1998 to 2011.

Direction under Section 77 of the Employment Equality Acts, 1998 to 2011

7.1 It is my opinion that the complainant has established reasonable cause for the delay in referring his complaint. I, therefore, am empowered to direct an extension of time in which to refer a complaint to twelve months in this case.

__________________________

Peter Healy

Equality Officer

20 December 2013