EET153

This is an appeal by Aramark Limited (hereafter referred to as the Claimant) against the decision of the Equality Tribunal to extend time for the bringing of claim by Daniel Zbroja (hereafter referred to as the Complainant) under the Employment Equality Acts 1998 -2015. An extension was granted by the Equality Tribunal.

Background

The last act of discrimination on which the substantive claim is grounded occurred on 7^thFebruary 2014. A claim was presented to the Equality Tribunal on 29^thAugust 2014. The time-limit prescribed by s.77(5) of the Acts expired on 6^thAugust 2014.

Reasons relied upon for the delay

The reason proffered for the delay is that the Complainant was suffering from work related stress and was under the care of his GP and a psychologist from February onwards. Medical reports were submitted to the Court from his GP and from a Psychologist who he attended in Poland.

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.

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.

It is clear that the Complainant must both explain the delay and provide a justifiable excuse for the delay. He must also satisfy the Court, as a matter of probability that the excuse proffered actually caused the delay in the sense that the factors relied operated to prevent him from presenting his claim in time.

In this case the Court was told that the Complainant was receiving legal advice from the date of the last occurrence of the discrimination complained of. He took steps to initiate a claim for personal injuries and he instituted a claim under the Payment of Wages Act 1991 within the six month period of the date on which his employment equality claim crystallised. In these circumstances the Court cannot understand how it could be held that his medical condition could have operated to prevent him from initiating the within claim within the statutory time limit.

Outcome

Having regard to all the circumstances the Court is not satisfied that the Complainant has explained the delay or provided a justifiable excuse for the delay. Consequently the Court cannot uphold the decision of the Equality Tribunal.

The appeal is allowed and the decision of the Equality Tribunal to extend time is set aside

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.