EDA166

FULL RECOMMENDATION

ADE/15/43

DETERMINATIONNO.EDA166

ET-153183-EE-15/FP

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

PARTIES :

TESCO IRELAND LIMITED

- AND -

DAVID O ' CONNOR
(REPRESENTED BY KEANS SOLICITORS)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal of Adjudication Officer's Decision.

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 1st December, 2015 in accordance with Section 77(12) of the Employment Equality Acts 1998-2015. A Labour Court hearing took place on 31st March, 2016. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Tesco Ireland Limited (the Respondent) against the decision of the Equality Tribunal to grant David O’Connor (the Complainant) an extension of time in which to initiate his claim that the Respondent failed to provide him with reasonable accommodation for his disability. The Claim was taken under the Employment Equality Acts 1998-2015 (the Act)

The decision under appeal was given on 27^thOctober 2015, at which time s.40 of the Workplace Relations Act 2015 had commenced. Consequently, in accordance with subsection (8) of that section, the appropriate classification of the issuing authority is that of Adjudication Officer.

The appeal is before the Court under s.77(12) of the Act. Consequently the only issue for determination by the Court is whether the Adjudication Officer was correct in granting an extension of time.

The substantive claim to which this application relates was presented to the Equality Tribunal on 26^thJanuary 2015. The Complainant gave the date of the most recent occurrence of the discrimination alleged as 30^thJanuary 2014. Hence, if that was the date of the occurrence of the event, or the omission, giving rise to the claim, the six-month time limit prescribed s.77(5)(a) of the Acts expired on 29^thJuly 2014.

Section 77(5)(b) of the Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. That 12 month extended period, assuming that time started to run from 30^thJanuary 2014, would have expired on 29^thJanuary 2015, some three days after the claim was presented.

Background
The Complainant commenced employment with the Respondent on or about 22^ndMay 2008. He resigned from his employment on or about 30^thJanuary 2014. He became ill in or about May 2013. While details of the Complainant’s medical condition were provided to the Court it is unnecessary to recite those details for the purpose of explaining this determination. Suffice it to say that he underwent surgery and that surgery resulted in certain adverse complications. He attended regularly at the hospital at which the surgery was performed. He also attended his GP.

In or about August 2014 the Complainant was certified as fit to return to work. He was advised that he should only undertake light duties for a maximum of four shifts per week. The Complainant contends that he informed his manager of this requirement but that he was not accommodated with work consistent with the medical advice that he had received. .

In or about November 2013, the Complainant was again advised by his GP to cease working due to a recurring complication from his earlier surgery. He ceased working on 1^stDecember 2013. He subsequently resigned with effect from 30^thJanuary 2014, without having returned to work.

Issues arising
Against that factual background an issue arises as to the date on which the event or omission giving rise to the substantive claim occurred. It was submitted on behalf of the Respondent that any failure to provide the Complainant with reasonable accommodation for his medical condition (which is denied) could only have occurred on or before 1^stDecember 2013. If that is correct, the maximum extension that could be granted pursuant to s77(5)(b) of the Act could not avail the Complainant since his claim would have become absolutely statute barred on or before 30^thNovember 2013.

Counsel for the Complainant submitted that the failure of the Respondent to provide the Complainant with reasonable accommodation was a continuing contravention of the Act which endured up to the date on which he resigned, namely 30^thJanuary 2014.

However, the principal issue arising in this appeal is whether reasonable cause has been shown for an extension of timeper se. It is only if that question is resolved in the Complainant’s favour that the question of whether time can be extended up to and including 26^thJanuary 2015 will fall for consideration.

Extension of Time – The Legal Principles
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 DWT0338CementationSkanska (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.

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 test formulated inCementationSkanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. 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 clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

The Factors Relied Upon
The Complainant gave oral evidence concerning his medical condition and the treatment that he received for his condition. He underwent surgery in May 2013 and returned to work in August 2013. The evidence disclosed that following surgery the Complainant suffered from pain and discomfort from a wound which had not fully healed. However, in October 2013 his condition worsened and on or about 1^stDecember 2013 he again went on sick leave.

The Complainant told the Court that he continued to attend Hospital on a number of occasions per week to have his wound assessed and dressed. Each of these visits lasted about 20 minutes. He also visited his GP. He drove to these appointments. After his discharge from the Hospital, in or about March 2014, he attended a wound management clinic for some months.

The Complainant told the Court that in or about August 2014 he formed the view that he suffered a wrong in not being provided with a modified roster. He said that he first sought legal advice in relation to his grievance in or about December 2014.

It was the Complainant’s evidence that during the period after he resigned from his employment he was preoccupied with his recovery and for that reason he did not seek legal advice before December 2014.

Finally, the Complainant told the Court that he was diagnosed as suffering from a mild form of intellectual disability. This condition was diagnosed after the original application was made and consequently it was not proffered as a reason for the delay in the application to the Adjudication Officer.

Conclusion
The Court has applied the test formulated inCementation Skanska (Formerly Kvaerner Cementation) v CarrollDWT0338 to the Complainant's explanation for the delay in instituting the within complaint. In considering his application, the Court should ask itself if a reasonably diligent person, in the same circumstances as the Complainant and having the same state of knowledge of the material facts, would have delayed in pursuing a claim under the Act for the reasons advanced by him. Having regard to all the circumstances of the case the Court has concluded that it must answer that question in the negative.

The Court accepts that the Complainant suffered from a distressing medical condition to varying degrees during the period in respect of which he seeks an extension of time. The Court also accepts that he suffers from a mild form of intellectual disability. However no evidence was tendered on which the Court could be satisfied that either his medical condition or the other condition which was more recently diagnosed impeded his ability to seek advice on any potential claim that he could bring arising from his employment. In particular, the evidence given by the Complainant did not go far enough to establish, on the balance of probabilities, that the conditions from which he suffered impeded his thought process or his understanding of the events on which his claim is now grounded. The Court notes that in his evidence to the Court the Complainant testified that he formed the opinion that he had been wronged in or about August 2014. Yet, he delayed for a further four months before consulting his solicitors.

Outcome
For all of the reasons referred to herein and based on the evidence before it, the Court has concluded that the Complainant has failed to establish a causal connection between the factors relied upon in advancing his application and the delay in presenting the within claim. Accordingly the Court must hold that the Complainant has failed to adequately explain the delay and provide a justifiable excuse for the delay. It follows that the Court cannot uphold the decision of the Adjudication Officer, which it must set aside.

Disposal
The appeal is allowed and the decision of the Adjudication Officer is set aside and substituted with this Determination.

Signed on behalf of the Labour Court

Kevin Duffy
20th April 2016______________________
SCChairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.