FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : EDDIE ROCKETS (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LTD) - AND - MELANDA MAGYAR & LAURA MEZEI DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Workers and the Employer both appealed the decision of the Equality Officer to the Labour Court on the 20th and 21st May, 2013 respectively. A Labour Court hearing took place on the 31st October, 2013. The following is the Court's Determination:
DETERMINATION:
This is an appeal under Section 83 of the Employment Equality Acts 1998 – 2008 (the Act) byMelanda Magyar & Laura Mezei(the Complainants) against a decision of an Equality Officer made under Section 79(6) of the Act DEC-E2013-045 dated 20thMay 2013. By separate notice dated 21stMay 2013 Eddie Rockets (the Respondent) lodged an appeal against the decision. The case came on for hearing before the Labour Court on 31stOctober 2013.
Preliminary Issue
Jurisdiction of the Court
The Respondent submits that the complaints before the Court were not submitted to the Equality Tribunal within the statutory time limit set out in Section 77(5) of the Act. It further submits that no grounds were advanced by the Complainants that would justify an extension of time provided for in Section 77(6) of the Act.
The Law
Section 77(5) of the Act states:
- (5)Subject tosubsection (6), a claim for redress in respect of discrimination or victimisation may not be referred under thissectionafter the end of the period of 6 months from the date of the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
Section 77(6) of the Act states:
- (6)If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant’s case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit insubsection (5)—
- (a)the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case,subsection (5)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and
(b)where such a direction is given, thisPartshall have effect accordingly.
- (a)the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case,subsection (5)shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction, and
Facts
The first named complainant commenced work with the Respondent on 21stMay 2008. Her employment terminated on Saturday, 7 June 2008. The second named complainant commenced employment with the Respondent on Saturday, 24 May 2008. Her employment terminated on Wednesday, 4 June 2008. The complaints were received by the Equality Tribunal on 15 December 2008.
The six month statutory time limit set out in Section 77(5) of the Act expired for the first named Complainant on 6 December 2008. The statutory time limit for the second named Complainant expired on 3 December 2008.
The Complainants made an application for an extension of time under Section 77(6) of the Act. The Equality Officer allowed an extension of time. However in his decision he does not set out the “exceptional circumstances” that “prevented the complainant’s case being referred within the time limit in subsection 5.
The Court asked the Complainants to set out the exceptional circumstances that prevented them referring the complaints within the statutory time limit. The Complainant stated that they were foreign nationals, had poor English language skills and were unfamiliar with the Irish Legal system. The Respondent submits that these reasons do not amount to exceptional circumstances and do not meet the tests set out in the Act or by this Court in its application of the Act.
Findings of the Court
The question for the Court to decide is whether the Complainant has adduced evidence that exceptional circumstances prevented them referring their case to the Court within the time limit insubsection (5).
The Court has dealt with this matter at some length inDECISION NO. EET034 GAELSCOIL THULACH NA NOG - AND - JOYCE FITZSIMONS-MARKEY.In that case the Court addressed the matter in the following manner:
- The question for determination
The question for determination in this case is whether the applicant was prevented by exceptional circumstances from bringing her claim within the time limit prescribed by Section 77(6) of the Act. That is pre-eminently a question of fact and degree. Each case must be decided on its own circumstances and the improbability of any two cases falling under the same set of circumstances makes it unlikely that the decision in any one case can be more than a rough guide to the decision in another. Whilst the Court has considered the earlier decisions to which it was referred, they are of limited assistance since the circumstances of neither of them correspond to those of the instant case.
Exceptional Circumstances
The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.
The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered (seeR v Kelly [1999] 2 All ER 13 at 20 per Lord Bingham CJ.)
In this case the Complainants state that they are foreign nationals with limited English language skills and with a lack of familiarity with the Irish legal system. While these factors may in all the circumstances of a particular case amount to exceptional circumstances in this case they do not. The Complainants brought a complaint to the Rights Commissioner under the Payment of Wages Act, 1991 that was heard on 20 November 2008. It is clear from this that the Complainant’s language skills, their lack of familiarity with the Irish legal system or their foreign nationality did not prevent them from seeking to vindicate their rights through the Irish employment law system in respect of that matter. It is consequently difficult to accept the argument presented by the Complainants that the “exceptional circumstances” they rely on in this case had no adverse effect on their capacity to prosecute a complaint under another piece of employment legislation through the Irish legal system.
Determination
The Court determines that the Complainants have not adduced evidence of exceptional circumstances that prevented them referring their complaints to the Equality Tribunal within the time limit set out in Section 77(5) of the Act.
The complaints are out of time. The Respondent’s appeal is allowed. The decision of the Equality Officer is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
25th November, 2013______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.