EET152

FULL RECOMMENDATION REE/15/4 DETERMINATIONNO.EET152 INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : BALLINAMORE HOUSE NURSING HOME/RAICAM HOLDINGS LIMITED (REPRESENTED BY P. O'CONNOR & SON SOLICITORS) - AND - ASTER KASSA GUINAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham

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


BACKGROUND:

2. This is an appeal pursuant to Section 77(12) of The Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 30th October 2015. The following is the Court's Determination:



DETERMINATION:

This is an appeal by Aster Kassa Guinan,(hereafter the Complainant) against the refusal of the Equality Tribunal to extend time for her to lodge a complaint under the Employment Equality Acts 1997 – 2015 against, Ballinamore House Nursing Home (the Respondent). The Complainant alleges discrimination on the race grounds in respect to her conditions of employment. She also alleges victimisation and harassment.

The Complaint was presented on 22^ndOctober 2013. The date of the most recent discrimination alleged was 23^ndNovember 2012. Consequently the claim was five months out of time.

The grounds relied upon in advancing the application for an extension are: -

• 
  •The Complainant had been unable to function in any coherent way due to the discrimination alleged, and

  •The Complainant submitted medical documentation in support of her application stating that she attended a doctor for monitoring and support in relation to difficulties at work.

The Respondent contends: -

• 
  •The Complainant notified them on 23^rdJanuary 2013 of her intention to pursue a claim under the Act.

  •The medical documentation relied upon does not specify the health issues experienced by the Complainant nor does it support her contention that she was unable to function in a coherent way

  The Law

Section 77(5)(b) of the Act provides, in effect, that where 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 be 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. Here the Court was concerned with applying a provision of the Rules of the Superior Courts which allows for an extension of time for bringing judicial review proceedings where there is good reason for so doing. Here Costello Costello J. (as he then was) stated as follows: -

• • 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.

Discussion
It seems clear to the Court that the Complainant formed an intention to bring proceedings under the Act on or about 23^rdJanuary 2013. It was on that date that the Complainant wrote to the Respondent and made express reference to bringing a claim under the Act. In a reply dated 6^thFebruary 2013 the Respondent made it clear that any such claim would be resisted. At that point all of the factors necessary to present a claim were present. Moreover, the Complainant told the Court that she had obtained advice from the Citizens Information Service and that she had joined a trade union from which she received advice in relation to taking a claim. The Court was told that the Complainant was advised by the Union of the time limits for bringing a claim.

It was submitted on the Complainant’s behalf that she was not in a position to recall or record the detail of the treatment upon which her claim is grounded by reason of her psychiatric health at that time. However, the Court does not accept that in order to present a complaint to the Equality Tribunal it was necessary to provide a particularised account of the circumstances giving rise to the claim.

The Court is satisfied that in January 2013 the Complainant knew that she had grounds for taking a claim under the Acts. By February 2013 she knew that the Respondent would fully defend the claim if made. At that stage she had the benefit of professional advice, including advice on the necessity to comply with the statutory time limit. Against that background there is nothing in the material before the Court from which it could be held that the factors relied upon in advancing this application either explained the delay or provided a justifiable excuse for the delay.

Outcome
In these circumstances and on the established tests, the Court cannot grant the extension sought. Accordingly the appeal is disallowed and the decision of the Equality Tribunal is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
13th November 2015______________________
AHChairman



NOTE

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