EET146

Background

The Complainant referred a complaint to the Equality Tribunal on 2nd September 2013, alleging that she was harassed by the Respondent. In the complaint form she stated that the most recent date of discrimination took place on the 22nd May 2009.

On the 18th September 2013 her legal representative wrote to the Tribunal stating that this date was in error and that the most recent date of discrimination was in fact the 28th February 2013. That is the date on which the Appellant wrote to the Complainant stating that, in its view, she had terminated her employment on 6 June 2012.

In either case the Complaint was out of time under the Act. The Complainant requested an extension of time under section 77(5) (b) of the Act.

The Law

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.

History

If the most recent act of discrimination took place on the 22ndMay 2009 then the complaint is out of time and the Court does not have jurisdiction to extend time to bring it within the scope of the Act. If the most recent act of discrimination took place on the 28thFebruary 2013 then the Court may, for reasonable cause, extend the time in which a complaint may be brought by a period of up to six months. In this case the expiry date for the referral of the complaint was 27th August 2013. The Complaint was submitted on the 2ndSeptember 2013.

On 21st October 2013 the Complainant’s solicitors submitted a letter together with a medical certificate from her treating General Practitioner stating that she

“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.”

The Complainant’s representative stated that she went on sick leave on 22nd May 2009. That the Respondent terminated her employment on the on 28th February 2013, which he claims was done in the“full knowledge of” his client’s medical history and disability. He argued that this worsened her depression and anxiety, and as a consequence she was unable to comprehend her rights at the time. He states that when she recovered the capacity to make a complaint she did so immediately. He states that the complaint was lodged 3 days outside the statutory 6 month time limit.

The Respondent’s representative objects to an extension of time and argues that the Complainant has not shown reasonable cause for the delay in bringing proceedings under the Act.

He states that the Complainant was not dismissed on the 28thFebruary 2013. He argues that the letter “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”. He argues that the Complainant in fact left her employment in June 2012 when she requested her P45.

He argues that the Complainant was capable of writing three letters to the Respondent regarding her employment claims in the relevant six month period. He argues that if the Complainant was capable of writing such letters she was also capable of commencing a complaint under the Act.

He states that in one of those letters the Complainant makes reference to contact with her solicitor regarding any disputed matter regarding her employment. He argues that this demonstrates that the Complainant had access to legal advice at this time and that she could therefore have commenced proceedings within the statutory time limit.

He further argues that on the originating complaint form the Complainant states that the most recent act of discrimination occurred on 22nd May 2009. He argues that the Complainant sought to change the form to state that the most recent act of discrimination occurred on 28th February 2013. He argues that the change of date changes the nature of the complaint before the Court and cannot be permitted under the Act.

The matter came on for hearing on appeal before this Court on the 17thOctober 2014.

Conclusions

The requirements of section 77(5)(b) of the Employment Equality Acts 1998 to 2011 are clear. The section provides that where “reasonable cause” is shown the Court may extend time beyond the statutory six month time limit for the bringing of a complaint under the Act.

The leading case as to the meaning of “reasonable cause” is the decision of Costello J in O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301. In that case he was dealing with the meaning of the term “good reason” and how it is to be applied when considering a request to extend time. He stated

"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".

Though Costello J was interpreting the meaning of the term “good reason” this Court has applied the same meaning to the term “reasonable cause” in this Act. It set out its decision at some length in the case of Elephant Haulage Ltd v Mindaugas Juska EET082.

In that case it stated

"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."

It 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.”

Finally it stated that even where reasonable cause is shown it is a matter for the Court to decide whether it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.

The Court notes that the complaint in this case was referred 6 days outside the statutory time limit. The complainant has stated that the delay was due to a mental health illness that impeded her capacity to function normally. She produced certification from her attending General Practitioner that states that because of her medical condition she was in no fit state to bring proceedings within the six month time limit.

The medical evidence was not directly disputed by the Respondent.

The Respondent argued instead that the Complainant had the capacity to write three letters in the relevant period and that she was in contact with and had legal advice available to her at that time. It submitted that if the Complainant was capable of such an interaction with the Company she was capable of commencing proceedings under the Act.

The Court finds that the medical evidence in this case is strong enough for it to conclude that the Complainant was not fully capable of asserting her rights at that time and that she did so as soon as she was so capable of doing. Accordingly the Court takes the view that the Complainant has shown reasonable cause for the delay and also that she acted immediately upon recovering the capacity to commence a complaint under the Act.

However Counsel for the Respondent made a number of submissions that the Court also considered.

The Court considered the change to the complaint form submitted by the Complainant.

Having considered the detail of the submissions of both sides the Court takes the view that this matter can best be dealt with in the course of the substantive hearing into the complaint.

The Court also considered the Appellant’s argument that the Complainant terminated her employment in June 2012. Again the Court makes no decision on this point but leaves it for consideration in the course of the hearing of the substantive matter.

Having taken all of the circumstances into account the Court takes the view that it should exercise its discretion in this case and allow an extension of time for the bringing of a complaint under the Act.

Determination

Having considered all the evidence before it the Court upholds the decision of the Equality Officer and allows the extension of time in which to refer a complaint under the Act. The appeal is rejected. The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
9th December, 2014.Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.