FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : G4S SECURE SOLUTIONS (IRELAND) LIMITED (REPRESENTED BY IBEC) - AND - MACIUKAS (REPRESENTED BY DONAL KEIGHER AND CO. SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. An appeal under Section 77(12) of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 13th December 2013. A Labour Court hearing took place on the 19th March 2014. The following is the Court's Determination:
DETERMINATION:
The Complainant filed a complaint with the Equality Tribunal on 4 April 2013 alleging that he was discriminated against on the race ground by the respondent on and before 13 June 2012. He specifically complained that he was discriminated against in that he was denied access to employment by the respondent.
The Complainant is a foreign national who was employed by a security company on one of its client contracts. It lost that contract to the Respondent. The transfer of the contract to the Respondent took effect on 13 June 2012. Some of its staff transferred to the Respondent. The Claimant was not offered the opportunity of transferring to the Respondent but was offered and accepted alternative assignment by his employer. Some ten months later he submitted the complaint under the Act to the Equality Tribunal.
Section 77(5) of the Act states that
(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.
The Complaint was referred outside the statutory time limit set out in section 5(a) of the Act. The Complaint sought an extension of time under section 77(5) of the Act. The Equality Officer states that Mr Keigher, Solicitor for the Complainant, stated in his application for an extension of time under the Act that the complainant was not aware of the statutory time limit and advanced that as the sole reasonable cause for the delay in bringing proceedings. The Respondent did not make any submissions on this point to the Equality Officer.
The Equality Officer decided not to extend time finding
"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."
The Complainant appealed against that Decision to this Court.
The case came on for hearing on 19 March 2014. At the hearing Mr Donal Keigher, solicitor for the Complainant, argued that complaint contained clear and consistent references to both brothers and that they were in in effect in common case. He further argued that heir employment continues to exist, and that they would still both be employed there if they had received the same fair treatment as all other staaff.
He further submits that there is a causal link between the reasons advanced by the claimant and the delay in bringing this complaint to the Tribunal. He argues that the claimant was denied employment by the Respondent. Being a non-national with dependents to support, he accepted an alternative offer of employment in order to mitigate his loss and to provide for his family. That work involved a two-hour drive in each direction, each day, leaving him very little time to consult with anybody with regard to his position.
Mr Keigher subsequently set out that submission in writing to the Court.
Ms Roisin Bradley, IBEC, for the Respondent submits that circumstances outlined by the Complainant did not prevent him from submitting his complaint in time to the Tribunal. She argues that the Complainant accepted an offer of redeployment from his employer Bridgestock Security when it lost a client contract to the Respondent and a number of the staff transferred with that contract. When Bridgestock Security some time later notified him that he was being made redundant, he then commenced proceedings under the Act against the Respondent. She argues that there was no impediment to the Complainant bringing proceedings under the Act within the statutory time limit.
Findings of the Court
The facts of the case are not in dispute. The complaint was submitted to the Tribunal 10 months after the alleged infringement of the Act took place. Section 77(5) imposes a statutory time limit of 6 months for the bringing of complaints under the Act. Section 77(5) (b) provides however that where “reasonable cause” for a delay beyond six months is shown the Court may extend the time limit by up to a further six months.
In an analogous caseO’Donnell v Dun Laoghaire Corporation [1991] ILRM30Costello J explained the concept of “good reason” in the context of the institution of Judicial Review proceedings 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 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 under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.
The Labour Court has stated inCementation Skanska v A Worker DWT0425that
“a long delay will require a more cogent explanation” than a shorter one.
It went on to state
“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.”
In this case the Complainant suffered the alleged infringement of his rights on or before 13 June 2012. He submitted his complaint to the Equality Tribunal some 10 months later. Therefore he must explain a delay of four months after the statutory time limit expired. Such a delay is not inconsiderable and requires a cogent explanation.
The explanation offered by the Complainant is that he had dependents, could not afford to be without an income and took the employment offered to him in order to provide for them. That employment required him to travel up to four hours per day and thus left him little time to file a complaint under the Act. He further states that the documentation issued in another case made reference to the Complainant’s case and the Respondent was aware of this at all material times.
The Court notes that these arguments were not made in the Complainant’s letter of 17 April 2012 to the Tribunal seeking an extension of time. That letter sets out one reason only viz that the Complainant was not aware of the six month time limit.
Having examined the submissions of both parties the Court finds that the Complainant has explained the delay but has not afforded a “justifiable excuse” for it. The Complainant was undoubtedly busy making his way to and from work each day. However he was in control of his affairs and was prioritising the issues of importance to him in the time available to him. He had ample opportunity within the six month time limit to initiate a complaint under the Act. The Court was presented with no evidence to indicated that he was not in charge of his affairs or was otherwise impeded in the making of and or acting on a decision to file a complaint under the Act.
Accordingly the court finds that the Complainant has not shown reasonable cause for the delay in bringing the complaint within the six month time limit.
Determination
The Court affirms the Decision of the Equality Officer. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
26th June, 2014.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.