DWT1632

The Issue

The Complainant resigned from his employment in October 2013. His claim was presented to the Rights Commissioner Service of the then LRC on 25^thJune 2014. While there is some uncertainty around the date of his resignation, the Rights Commissioner found that the latest date on which it could have taken effect was 23^rdOctober 2013. It was then out of time having been presented some 8 months after the latest date in which he was employed by the Respondent and on which any contravention of the Act could have occurred.

The Complainant appears to have put forward a range of reasons to excuse the delay and to obtain an extension of time. They related, in the main, to a claim that he was medically unfit to attend to his affairs in the relevant period. An extension was refused by the Adjudication Officer / Rights Commissioner, mainly because the Complainant had made a complaint to the Equality Tribunal in the relevant period and that this undermined his claims concerning his medical unfitness to make a claim under the Act.

Against that background it was decided to arrange a preliminary hearing on the question of whether the complaint was presented in time and on the related question of whether an extension of time can be granted.

The Appeal

On hearing the submissions of the parties there is no doubt that the within claim was presented more than six months after the Complainant resigned from his employment. Consequently the only issue for consideration is whether the decision of the Adjudication Officer / Rights Commissioner to refuse an extension of time was correct.

The Complainant told the Court that the delay was caused by a medical condition from which he suffered in the relevant period and that his affairs were being handled by his son. No medical evidence was adduced in relation to this condition or on how it impacted on the Complainant’s capacity to present a claim within the time limit. The Court was informed that the Complainant referred a complaint to the former Equality Tribunal in November 2013, under the Employment Equality Acts. He also engaged in correspondence with the Equality Tribunal and with the Respondent in respect of that claim.

The Complainant also contended that the delay was caused by misrepresentation made by the Respondent, apparently in its response to a statutory questionnaire presented by him pursuant to the Employment Equality Acts 1998 -2011. No details of the claims of misrepresentation were provided.

Conclusion

It is for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an applicant for an extension of time must both explain the delay and provide a justifiable excuse for the delay. Having considered the submissions advanced in the course of the appeal, and in circumstances in which he was able to present a related claim in time, the Court cannot accept that the Complainant was impaired in presenting a claim under the Act within the statutory time limit. For these reasons the Court cannot identify any justifiable basis upon which an extension of time could be granted in this case.

Outcome

For the reasons set out herein, the appeal is disallowed and the Decision of the Adjudication Officer / Rights Commissioner is affirmed.

Signed on behalf of the Labour Court



Kevin Duffy
22 April 2016______________________
MNChairman



NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.