EET144

FULL RECOMMENDATION

REE/14/1

DETERMINATIONNO.EET144

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011

PARTIES :

A GOVERNMENT DEPARTMENT

- AND -

A CIVIL SERVANT

DIVISION :

Chairman: Mr Duffy
Employer Member: Mr Murphy
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal Under Section 77(12) of The Employment Equality Acts, 1998 to 2011

BACKGROUND:

2. This case is an appeal under Section 77 (12) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 23rd September 2014. The following is the Court's Determination:

DETERMINATION:

This is an appeal by the a Government Department against a decision of the Equality Tribunal to extend time pursuant to s77(5) of the Employment Equality Acts 1998 – 2011(the Acts) in a claim of indirect discrimination on grounds of disability brought by a Civil Servant.

In this Determination the parties are referred to as they were at first instance. Hence the Civil Servant is referred to as the Complainant and the Government Department is referred to as the Respondent.

Background
The Complainant is a person with a disability. He presented a complaint to the Equality Tribunal on 28^thJune 2013 in which he claimed to have suffered discrimination by the Respondent on and before 16^thJuly 2012. The complaint was outside the time limited by s. 77(5)(a) of the Act. In exercise of the powers conferred on it by s.77(5)(b) of the Act, the Equality Tribunal extended the time in which to refer the complain to twelve months from the occurrence of the event giving rise to the complaint. The Respondent appeled against that decision.

Reasonable Cause Relied Upon
The Complainant, through his trade union, CPSU, submitted that he had mental difficulties which caused him to delay in referring the within claim. It was contended that the Complainant’s condition arose from the circumstances in which he was suspended and placed under investigation by the Respondent for alleged misconduct.

The Court was told that the Complainant was accused of dishonestly assisting a relative to obtain a benefit from the Respondent to which that person was not entitled. The Complainant was summarily suspended from his employment on 16^thJuly 2012 and ordered to leave his workplace immediately. He is a wheelchair user and it is claimed that the circumstances surrounding his removal from the Respondent’s premises constitutes indirect discrimination against him on grounds of his disability. Thereafter, the Complainant was subjected to a disciplinary investigation in which he was threatened with dismissal. This disciplinary process continued until August 2013, when the Complainant was exonerated from the wrongdoing alleged against him.

At the time of his suspension the Complainant contacted his trade union which represented him in the course of the disciplinary investigation. His union official advised him of a possible cause of action under the Act and of the applicable time limit. The union advised the Complainant to consider if he wished to pursue a claim under the Act and revert to it with instructions.

The Complainant told the Court that he was devastated by the allegations made against him. He was in fear of losing his job and having his good name and that of members of his family tarnished by serious allegations of dishonesty. He devoted the whole of his energy to trying to defend the charges laid against him and he felt unable to concurrently pursue another matter against the Respondent. He told the Court that he also felt that his difficulties would be further aggravated by initiating a claim against the Respondent. The Complainant attended his GP in this period. A report from this GP was put in evidence. This report disclosed that the Complainant attended the GP on five occasions between 24^thJuly 2012 and 14^thNovember 2012. The doctor stated in her report that over this period the Complainant was significantly stressed both by the investigation being conducted against his and by anxiety for his future. The report went on to say that this affected the Complainant’s mood, sleep and general wellbeing and he responded to the stress at times by binge drinking.

The law
Section 77(5)(b) of the Act provides, in effect, that were reasonable cause is shown for a delay in presenting a claim under the Act the 6 month time limit at subsection (4)(a) of that section may be extended to a period not exceeding 12 months. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination WTC0338 (October 28, 2003)CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

It is the Court's view 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 the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence 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. 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. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court inMinister for Finance v CPSU & Ors[2007] 18 ELR 36.

The seminal decision on this point is that of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. That case involved a late application by the plaintiffs arising from the imposition of water rates by the Manager of the defendant Local Authority and the disconnection of the plaintiffs’ water supply for failure to pay the charges. The plaintiffs instituted proceedings challenging the validity of the orders imposing water rates, seeking a declaration that their water supply had been wrongfully disconnected and claiming damages for the said wrongful disconnection. It appears that the plaintiffs had come to believe that the Manager’s order might be invalid from newspaper reports of a decision of the Supreme Court involving a similar issue in another Local Authority. But they delayed instituting proceedings because they were campaigning against the charges through a residents association of which they were members. They also believed that the Local Authority would bring proceedings against them to recover the charges and that they could raise the defence of invalidity in such proceedings. The plaintiffs moved only when their water supply was disconnected and they were charged a fee to have it reconnected.

The Court decided to deal with the application by applying the principals applicable in an application to extend time for bringing judicial review proceedings. In granting the reliefs sought, in part, Costello J. (as he then was) considered if there was good reason to extend time and formulated a test in the following terms: -

The phrase‘good reasons’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 that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

However, the test does not end there. The question of whether there is good reason to extend time when a reasonable explanation for the delay has been established turns on the degree of prejudice that may be suffered by the defendant or by third parties in consequence of the delay. The Judge continued: -

There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] IR 181).
Or again, the delay may unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event there would not be a good reason for extending the time, or a plaintiff may acquiesce in the situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in instituting the proceedings.

Similar principles have been identified by the Supreme Court in the case ofde Roiste v. The Minister for Defence and Others[2001] 1 I.R. 190 andDekka Éireann Teoranta v. The Minister for Environment and Local Government[2003] 2 I.R. 270.

Inde Roiste v. The Minister for Defence and OthersMrs Justice Denham pointed out that there is no exhaustive list of factors to be taken into account in considering such applications but that the overriding consideration should be to protect justice. Denham J (as she then was) set out the following principles:-

In analysing the facts of a case to determine if there is a good reason to extend time or to allow judicial review, the Court may take into account factors such as; (i) the nature of the order or actions the subject of the application; (ii) the conduct of the applicant; (iii) the conduct of the respondents; (iv) the effect of the order under review on the parties subsequent to the order being made and any steps taken by the parties subsequent to the order to be reviewed; (v) any effect which may have taken place on third parties by the order to be reviewed; (vi) public policy that proceedings relating to the public law domain take place promptly except when good reason is furnished. Such list is not exclusive. It is clear from precedent that the discretion of the Court has ever been to protect justice.

In his judgment in that case Keane CJ emphasised that any prejudice that the defendant would suffer in defending the claim should be taken into account. He pointed out that at the time of the hearing many of those centrally involved in the impugned decision were dead. In his judgment Fennelly J. adopted the test formulated inO’Donnell v Dun Laoghaire Corporationand went on to point out that the length of the delay is a relevant consideration. On that point the judge said: -

In the nature of things a short delay might only require a short explanation, a longer delay would require a more cogent explanation. Explicable delays have usually been a matter of months and very rarely a matter of years

These comments were made in the context of an application in which the applicant was seeking to excuse a delay of some 29 years in challenging a decision of the Minister for Defence discharging him from the army.

Discussion
It is well settled on the authorities that in an application to extend time pursuant to s.77(5)(b) of the Act the Complainant must first identify the reason for the delay. The reason given must both explain the delay and provide a justifiable excuse for the delay on an objective standard. The test imposes a relatively low threshold of reasonableness but it is clear that time should not be extended merely because a complainant thought that he or she was justified in delaying. If a reasonable explanation is given the Court must consider if there is good reason to extend time. That involves a consideration of the degree of prejudice that the prospective respondent, or third parties, might have suffered in consequence of the delay. In particular any prejudice that may arise in defending the claim must be taken into account. To the forefront of the Court’s consideration in this process must be to best serve the interests of justice.

In this case the Complainant explained the delay by reference to the affect that the allegations of dishonesty levelled against him had on his mental state and emotional well-being. He was overwhelmed by what occurred. He was facing not only the loss of his employment but the prospect of opprobrium being visited upon him and his family. If he was dismissed for dishonesty his prospects of future employment would be seriously diminished. The extent of his disability would further reduce the likelihood of him obtaining another job. The Complainant was eventually exonerated from the allegations of wrongdoing.

Any person of normal fortitude could be expected to suffer serious stress and anguish by being wrongly accused of such serious misconduct as that alleged against the Complainant. As noted earlier in this Determination, the Complainant’s doctor stated in her report that over the period that he attended her the Complainant was significantly stressed both by the investigation being conducted against him and by anxiety for his future. The report went on to say that this affected the Complainant’s mood, sleep and general wellbeing and he responded to the stress at times by binge drinking.

While the doctor last seen the Complainant in November 2012 there is nothing in her report, nor is there any other evidence before the Court, from which it could be inferred that these manifestations of his condition abated quickly thereafter. Moreover, the Complainant told the Court that his priority was to defend himself against the allegation that he faced and protects his employment. He said that he felt that his already perilous position would be aggravated by initiating proceedings against the Respondent.

In the course of his submissions, the representative of the Respondent urged the Court to apply a test formulated in Determination EET122,Dundalk Institute of Technology v Dalkieni,in the following terms: -

“In considering the within application the Court should ask itself if a reasonably diligent person, having the same state of knowledge of the material facts as the Complainant, would have delayed for the reasons advanced by the Complainant”

While that is a useful test, the hypothetical reasonably diligent person postulated must be in the same, or a not materially different, position to that of the Complainant. That is to say a normally reasonably diligent person who is significantly stressed and whose mood, sleep and general wellbeing is affected by that stress and whose response to that stress is the same as that experienced by the Complainant. The Court is satisfied that such a reasonably diligent person in that position might well be so overwhelmed by the gravity of the situation in which they found themselves that they could understandably slip from their usual standard of diligence.

Turning to the question of the extent to which the Respondent may be prejudiced in defending this claim, the representative of the Respondent accepted that it will have suffered no such prejudice by the delay.

Conclusion
The Court accepts that the reason proffered by the Complainant for the delay in presenting his claim both explains the delay and provides a justifiable excuse for the delay. The Court is further satisfied that had the circumstances relied upon by the Complainant not been present he probably would have presented his claim in time. It is also clear that the Respondent will suffer no prejudice in defending the claim in consequence of the delay. Finally, the Court is convinced that the interests of justice require that the Complainant be permitted to have his claim heard and determined on its merits.

The decision of the Equality Tribunal is affirmed and the within appeal is disallowed.

Signed on behalf of the Labour Court

Kevin Duffy
7th October 2014______________________
AHChairman

NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.