DIR-E2014-002

DIR-E2014-002

EE/2013/052

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

Complaint by A Teacher against A School Board of Management under the Employment Equality Acts 1998 to 2011

Background to the complaint:

1. The complainant referred a complaint to the Equality Tribunal on 29th January 2013, alleging that she was discriminated against on the gender ground by the respondent on and before 25th June 2012. The complainant alleges that the respondent improperly failed to offer her teaching hours to which she was entitled. The complainant had submitted a complaint on the 24th December 2012 with the Department of Education and Skills as the name of her employer. The Department returned correspondence from the Tribunal in January 2013 stating that the employer was the Principal of the school. On 24th January 2013 a letter issued from the Tribunal informing the complainant of this and the complainant responded with a withdrawal of the first complaint on 25th January 2013 and the subsequent complaint received on the 29th January 2013.

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 current complaint was received in the Equality Tribunal on 29th January 2013. The date of the most recent occurrence of an alleged discriminatory act was 25th 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 24th December 2012.

Request for extension of time application

4.1 The complainant’s representative made an application for an extension of time for referral of the complaint in a letter dated 25th February 2013. In that letter, the complainant referred to her original complaint of December 2012, with its erroneous reference to the Department of Education and Skills as her employer. She stated that she had been misled by the Tribunal’s online form, which she claimed stated that her employer was the entity that produced her P60. She claimed the Department had informed her that it was a “common error”.
She states that although the incident being complained of “occurred in May 2012 the complaint was not made until 2012 for a number of other reasons”:

• Her union rep. had instructed her to wait until “the six month period was up”
• Her shop steward “continued with investigations” until late July 2012
• Teacher timetables which she claims are relevant “did not come to light” until November 2012.
• She had allegedly been subjected to “incidents of bullying” in previous years.
• She claims she had been formally cited for misconduct as a “counter response” to her allegations of bullying. The respondent denies this. She states that the employer issued “a serious letter that threatened” her for a period of 8 months.

She states that she felt “a complaint to the Equality Tribunal could not take place until” a new Board of Management had been put in place, and that this didn’t occur until October 2012.

4.2 The respondent contests the reasons given for the extension. In regard to the issue of the wrong employer being named on the complaint form, the respondent submits that the complainant naming the Department of Education as her employer does not stand to reason as the complaint has signed a number of appointment and re-appointment forms over a number of years that refer to the respondent as the Complainant’s employer.

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 over 4 weeks outside the time limit. The complainant has stated that the overall delay was due to many different reasons. However, I am satisfied that the 4 week delay at that particular time, was entirely due to an administrative error on the part of the Complainant in naming the wrong employer in the original complaint.

I am satisfied that this error arose as the complaint mistakenly complied with an information guide note attached to the complaint form. That guide note suggested that in order to correctly identify an employer that Complainants should check for their P45 and /or P60 Tax certificate for the correct name.

The respondent argues that these do not constitute reasonable cause for the delay. While I accept the respondent’s arguments that the Complainant was made aware in writing on many occasions that they were her employer, I also accept that the Complainant had a rational although incorrect reason for entering the Department of Education on the complaint form.

I note that Complainant acted promptly to issue a new claim form as soon as she became aware that there was an issue with the party that she had named as her employer. I note that the 4 week delay between the issuing of the two complaints was mostly due to the Christmas period falling during that time.

In the circumstances 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 her 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