FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : ASSURANT SERVICES (IRELAND) LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - FRANZ TROYSI (REPRESENTED BY FRANZ TROYSI) 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 Complainant referred his case to the Labour Court on the 5th April, 2012, in accordance with Section 77(12) of the Employment Equality Acts, 1998 - 2004. Labour Court hearings took place on the 26th October, 2012 and on the19th July, 2013.
The following is the Court's determination:-
DETERMINATION:
The matter comes before the Court pursuant to an appeal by Mr. Franz Troysi 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 Acts).
Background
Mr. Troysi referred a complaint to the Equality Tribunal on 1stDecember 2011 alleging that he was discriminated against on the disability ground by Assurant Services (Ireland) Limited between 2ndFebruary and 31stMay 2011. As the complaint was submitted to the Equality Tribunal more than 6 months but less than 12 months after the alleged discriminatory acts occurred Mr. Troysi by letter of 16thDecember 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 not established reasonable cause for the delay in referring his complaint. I, therefore, am not empowered to direct an extension of time in which to refer a complaint to twelve months in this case. '
This Direction was appealed by Mr. Troysi to the Labour Court pursuant to Section 77(12) of the Act.
Henceforth, Mr. Franz Troysi will be referred to as “the Applicant”and Assurant Services (Ireland) Limited will be referred to as “the Respondent”.
Preliminary Objection
Prior to the hearing Ms. F�ona Higgins, IBEC on behalf of the Respondent raised a preliminary objection to the jurisdiction of the Court on grounds that the conditions specified in Section 77(5) of the Acts (amended by Section 22 of the Civil Law (Miscellaneous Provisions) Act, 2011) have not been fulfilled.
Section 22 of the Civil Law (Miscellaneous Provisions) Act, 2011 amends the Employment Equality Act 1998 - 2004 to provide that appeals against a Direction of the Director of the Equality Tribunal to grant/refuse an extension of time can be appealed to the Labour Court.
Section 22 states:
- Section 77 of the Act of 1998 is amended, in subsection (12), by the substitution of the following paragraph for paragraph (a):
“(a) Not later than 42 days from the date of a decision of the Director on an application by a complainant for an extension of time under subsection (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director specifying the grounds of the appeal.”.
Ms. Higgins tendered the proposition that the Applicant, in submitting his appeal before the Labour Court, had not notified the Director of Equality Tribunal, thereby not complying with the provisions of Section 77(5) of the Acts, in which case she submitted that the Court had no jurisdiction to investigate the appeal.
The Applicant’s Position on the Preliminary Issue Raised
The Applicant in his submission to the Court on the preliminary matter, received 21stJanuary 2013, stated that he had not been made aware of the requirement to inform the Director oftheEquality Tribunal that he wasappealing its decision tothe Labour Court and accordingly requested the Courtto grant the extension of time.
The Decision of the Courton the Preliminary Issue Raised
Having examined Section 77(5), the Court is of the view that the reference to “on notice to the Director” is a regulatory provision and not a mandatory one. It does not go to the heart of the statutory scheme. The Court is satisfied that failure to give notice to the Director would not invalidate the Applicant’s appeal. It does not go to the Labour Court’s jurisdiction. The provision does not state
“by notice” but “on notice”, which means that the Director should be informed for administrative convenience. The provision is for the purpose of regulating the Director’s affairs, so that the Director does not waste time setting up a hearing to hear the substantive case if the Direction of the Director is on appeal to the Labour Court.
The provision does not state “to the Director” – the Director has no jurisdiction to hear such an appeal and does not have the power to direct the Labour Court to do so. “on notice to” means that there is a requirement on a party to notify the Director, but failure can be excused.
The Court is of the view that failure to notify the Director would not have a detrimental effect on the other party as its purely intended for the administrative ease of the Director, in order to assist the Director to regulate its affairs where it has awarded an extension of time to an applicant, as in those circumstances it is encumbent on the Director to schedule a hearing of the substantive case, however, where the Director is notified of the appeal then he/she can await the outcome of that process first.
The Court is of the view that the mandatory requirements under the Section 77(5) include the requirement to submit the appeal within 42 days (in ease of the other party knowing that no further action on the matter can arise after 42 days); it must be in writing; it must state the subject of the appeal.
In“The Irish Legal System”Byrne and McCutcheon, under the Chapter“Interpretation of Legislation”the section entitled“Mandatory and Directory Provisions”states:
“A statute might require a course of conduct to be adopted or an act to be performed yet its omission might not be of great significance. Such provisions might be considered to be directory (or discretionary) rather than mandatory. The neglect of a directory provision does not affect the validity of other matters which are connected with it. The identification of a provision as being mandatory or directory is based on the intent of the legislation, with the provision being examined in relation to the overall statutory scheme.”
- “Whetheraprovision inastatute orstatutoryinstrument, whichon
the face of it is obligatory (for example, by the use of the word "shall"), should be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused.”
Byrne and McCutcheon say that the distinction between mandatory and directory provisions operates to prevent a party from relying on a minor breach of a statutory requirement to invalidate a procedure or an administrative act. In general, a comparatively unimportant provision in relation to the overall scheme will be held to be directory, thereby avoiding the unfortunate consequences which would otherwise attend its non-observance. On the other hand it is clear that a provision which is of greater importance should be held to be directory, breach of which will affect the validity that is dependent on it.The Supreme Court held that the requirement, in Article 36 of the Local Government (Planning and Development) Regulations 1977, to include the grounds of appeal in a notice of appeal to An Bord Pleanala is directory. Henchy J explained:
- 'The decision of a planning authority to grant a development permission, while not necessarily final, will become final if an appeal is not lodged within the time fixed by the Act. Since an extension of that time is not provided for, the requirement as to time is mandatory, so that a departure from it cannot be excused. The requirement that the appeal be in writing is so obviously basic to the institution of an appeal that it too must be considered mandatory. So also must the requirement that the written appeal state the subject matter of the appeal, for the absence of such identification could lead to administrative confusion. The lodgment of a deposit of £10 with the appeal (perhaps not necessarily physically or contemporaneously with the appeal) would also seem to be an essential part of the statutory
scheme, so as to discourage frivolous, delaying or otherwise, worthless appeals. The requirement that the appeal should state the grounds of appeal seems to me to rest on different considerations. Even when the appeal contains a full statement of the grounds of appeal, that statement is not conclusive as to the grounds that will be considered on the hearing of the appeal. That is because s 17 of the 1976 Act says this:- "The Board in deciding a reference or appeal may take into account matters other than those raised by the parties to the reference or appeal if the matters either relate to the proper planning and development of the area of the relevant planning authority or are matters to which by virtue of s 24(2) of this Act the Board may have regard, provided that the matters are brought to the notice of those parties and they are accorded an opportunity of making observations thereon to the Board or, in the case of an oral hearing, the person conducting the hearing."
Therefore, the Court is satisfied that the conditions specified in Section 77(5) of the Acts (as amended by Section 22 of the Civil Law (Miscellaneous Provisions) Act, 2011) have been fulfilled by the Applicant and accordingly the Court has jurisdiction to hear his application for an extension of time.
The Court so Determines.
Application for an Extension of Time
Summary of theApplicant’s Position on the Application for an Extension of Time
TheApplicantapplied to the Court for an extension of time on the basis that his claim was one day late in being referred to the Equality Tribunal. He told the Court that he signed his claim form on 30thNovember 2011, i.e. within the six-month period of the alleged discriminatory acts, which fell within the period
2ndFebruary 2011 and 31stMay 2011. However, it was one day late as the Equality Tribunal only received the claim on 1st December 2011.
The Applicant submitted that due to the nature of his illness he was prevented from filing his claim under the Acts any earlier. He provided the Court with copies of medical certification in relation to his medical condition which indicated that been treated for an illness since 2009 and he had been out ill since 31stMay 2011.
He stated that due to the nature of his illness he was prevented from filing his claim earlier.
Summary of theRespondent'sPosition on the Application for an Extension of Time
Ms Higgins on behalf of the Respondent disputed the Applicant’s contention that he had established reasonable cause for an extension in time. She held that there were no grounds for an extension and she disputed the Applicant’s assertion that his medical condition was the reason for the delay. In support of her contention she referred to the fact that during the six month period in question, notwithstanding his medical condition, the Applicant had been in a position to pursue two separate complaints to the Rights Commissioner Service of the Labour Relations Commission, he communicated with his trade union representatives, he issued correspondence to the Respondent, he attendeda Rights Commissioner's hearing and he participated in settlement proceedings.
Ms Higgins referred to the case ofCementation Skanska (formerly Kvaemer Cementation) Limited and Tom Carroll DWT 0426where the Labour Court outlined the test to be applied when an extension of time is to be considered, where the Court held:-
- “It is the Court's view 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 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 the 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. Here 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”.
Ms Higgins also referred to the case ofThe Minister for Finance v.The Civil and Public Service Union [2006] IEHC 145, where theHigh Court furtherendorsed this test.Miss Justice Laffoy,in consideration of the granting of anextension of time,states that:
- “The onus is on the respondents in the instant case to establish that reasonable cause has been shown and the respondents must not only establish reasons which explain the delay but also which afford a justifiable excuse for it.”
Ms Higgins held that the Applicant had not provided the Court with a justifiable basis for referring the claim outside the prescribed time limit and therefore submitted that there was no causal link between the aforementioned reasons and his failure to lodge his claim on time.
Conclusion of the Court
The Applicant referred a complaint to the Equality Tribunal alleging
discrimination on the grounds of disability between the 2ndFebruary 2011 and 31stMay 2011. He lodged his claim with the Tribunal on the 1stDecember 2011; therefore the claim was referred outside the six month time limit as stipulated Section 77(5) of the Acts.
The Court was told that due to the nature of the Applicant’s illness he was prevented from filing his claim any earlier. However, the Court was told thatduring the six month period in question, notwithstanding his medical condition he had prepared and processed two separate employment rights claims with the assistance of his trade union representative against his employer - under the Unfair Dismissals Acts and the Payment of Wages Act 1991. At the hearing before the Rights Commissioner on these claims he had participated in and completed a settlement with his employer and had subsequently cashed the cheque.
It is difficult for the Court to understand how the Applicant was prevented by his illness from processing similar proceedings under employment equality legislation within the six month time period. No explanation was submitted to the Court for the delay in processing the latter claim. The Court is of the view that there was nothing to prevent the Applicant from pursuing a claim under the employment equality legislation independently of the two other claims referred to as the processing of the equality claim was not dependent on the outcome of the claims before the Rights Commissioner. In any event the Rights Commissioner proceedings and settlement was concluded three weeks before he lodged his claim.
Accordingly, the Court is not satisfied that the Applicant has submitted reasons for the delaywhich both explain the delay and afford an excuse for the delay.
Determination
In all the circumstances the Court does not accept that the Applicant has shown that there were reasonable circumstances which prevented his claim from being presented in time.Accordingly, the application for an extension of time is rejected.The Direction of the Director of the Equality Tribunal is upheld and the Applicant’s appeal fails.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th July, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.