DIR-E2014-001

DIR-E2014-001

EE/2013/447

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

Complaint by A Retail Assistant against An Employer under the Employment Equality Acts 1998 to 2011

Background to the complaint:

1. The Complainant referred a complaint to the Equality Tribunal on 2nd September 2013, alleging that she was harassed by her employer (the Respondent). In the complaint form she gave 22nd May 2009 in the field marked most recent date of discrimination. On the 18th September 2013 her representative wrote to the Tribunal stating that this date was in error and that the most recent date of discrimination should be the 28th February 2013, which was the date of a letter in which reference was made to the end of her employment.

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 2nd September 2013. The date of the most recent occurrence of an alleged discriminatory act was 28th February 2013, 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 27th August 2013.

Request for extension of time application

4.1 On 21st October 2013 a letter was received enclosing a certificate (dated 17th October 2013) from the Complainant’s doctor stating that the Complainant “was suffering from depression and anxiety from February to August 2013 inclusive. This impacted significantly on her ability to make decisions and to concentrate and therefore she would have been medically not in a position to make a claim of unfair dismissal.”

4.2 In the accompanying letter, the Complainant’s representative wrote to explain that their client went on sick leave on 22nd May 2009. He stated that the termination of his client’s employment on 28th February 2013, which he claims was done in “full knowledge of” his client’s medical history and disability, worsened her depression and anxiety, and was unable to comprehend her rights at the time. He states that that the complaint was lodged 3 days after the expiry of the initial 6 month period.

4.3 On 2nd December 2013 a letter was received from the Respondent’s representatives. They contested many of the points in Complainant’s representations which are beyond the scope of this decision.

4.4 They state that the letter of 28th February 2013 “merely sets out the course of the relationship between the parties” and that the letter “simply advises the Complainant that the Respondent is of the view that the Complainant is no longer an employee of the company with regard to the events of June 2012”.

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 6 days outside the time limit. The complainant has stated that the delay was due to a mental health illness and was impeded by depression and anxiety allegedly caused by the respondent’s actions.

The complainant has produced medical certification that she was medically not in a position to make a claim during the required period. Therefore, 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

15th April 2014