EDA1615

FULL RECOMMENDATION

ADE/16/23

DETERMINATIONNO.EDA1615

et-154650-ee-15/FP

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

PARTIES :

SALESFORCE.COM
(REPRESENTED BY MC INNES DUNNE SOLICITORS)

- AND -

ALLI LEECH
(REPRESENTED BY NEVILLE MURPHY & CO SOLICITORS)

DIVISION :

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

SUBJECT:
1. Appeal of Adjudication Officer Decision No et-154650-ee-15/FP.

BACKGROUND:

2. On the 21 January 2016 the Employer referred the dispute to the Labour Court in accordance with Section 77 (12) of the Employment Equality Acts, 1998 to 2011 as amended. A Labour Court hearing took place on the 9 June 2016. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Salesforce.com (the Respondent) against the decision of an Adjudication Officer to grant Ms Alli Leech (the Complainant) an extension of time in which to initiate her claim that the Respondent discriminated against her contrary to the Employment Equality Acts 1998-2015 (the Act)

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 18^thFebruary 2015. The Complainant gave the date of the most recent occurrence of the discrimination alleged as 19^thFebruary 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 18^thAugust 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 19^thFebruary 2014, would have expired on 18^thFebruary 2015, the day the claim was presented.

Background

The Complainant alleges discrimination relating to a promotional opportunity.

The Complainant was pregnant from February to November 2014 and stated to the Court in evidence that issues associated with her pregnancy were such that on medical advice she sought at all times to avoid stressful situations. She stated to the Court that initiating a complaint with the Equality Tribunal would be a stressful situation which she sought to avoid.

The Complainant stated to the Court in evidence, and provided a medical document to support that evidence, that within 10 days of the birth of her child in November 2014 she fractured her wrist and was placed on an opioid medicine.

The Complainant attended for work throughout the period from February 2014 to the commencement of her statutory period of maternity leave on 29^thSeptember 2014. During that period she made a grievance complaint to the Respondent on 25^thMarch 2014 alleging discrimination arising from the events which form the basis for the within complaint. That grievance was processed internally within the Respondent company and the Complainant was found to have made out her case. That process concluded in May 2014.

The Legal Principles
The issue arising in this appeal is whether reasonable cause has been shown for an extension of time.

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 medical issues arising during her pregnancy. She supplied medical documents which outlined the nature of her interaction with her GP Service throughout the period of her pregnancy and up to 28^thNovember 2014. In addition the Complainant supplied medical documentation recording the dates of her interaction with her Consultant throughout her pregnancy together with a medical note describing a visit by her to a hospital in April 2015.

The Complainant told the Court that in April or May of 2014 a Doctor in her GP Service advised her to avoid stressful situations during her pregnancy. She told the Court that on the basis of that advice she decided not to make a complaint to the Equality Tribunal until after the birth of her child.

The Complainant told the Court that consequent upon her breaking her wrist within ten days of the birth of her child she was placed on morphine by her doctor in late November 2014 and that as a result she was not in a position to make a complaint to the Equality Tribunal until 18^thFebruary 2015.

It was the Complainant’s evidence that during the period following the incident in February 2014 she always intended to make a complaint outside the respondent Company but refrained from doing so initially on the basis of the advice given to her by a Doctor in her GP service in April or May 2014 and ultimately as a result of the implications of her sustaining a wrist injury in November 2014.

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.

The Court notes that no medical evidence has been supplied which supports the contention that a Doctor in the Complainant’s GP Service advised her in April or May 2014 to avoid stressful situations. In fact the evidence presented to the Court,which the Complainant told the Court was a comprehensive record of her attendance at her GP service during her pregnancy, does not record any visit by the Complainant to her GP service in April or May 2014. Neither does the medical information supplied to the Court make any reference after March 2014 to stress related concerns.

The Court has been supplied with medical evidence dated November 2014 confirming that the Complainant had been prescribed an opioid product. No independent medical evidence has been supplied to explain how that prescription affected the Complainant’s capacity to make a complaint to the Equality Tribunal between November 2014 and 18^thFebruary 2015.

In considering this appeal, 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 her. 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 was pregnant from February 2014 to November 2014. However no clear evidence has been presented to the Court to support the contention that the Complainant’s medical advice during her pregnancy was such as to cause her to refrain from making a complaint to the Equality Tribunal in that period. Neither does the Court accept that the making of such a complaint could reasonably be seen to be significantly more stressful than the making of the internal complaint which was made and processed between March and May 2014. `

The Court also accepts that the Complainant suffered a serious wrist break in November 2014. The Court has not been provided with medical evidence to support the contention that the nature of the treatment of the Complainant’s wrist injury was such as to justify a delay of approximately three months in making a complaint to the Tribunal from November 2014 to 19^thFebruary 2015.

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 by her 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 Foley
COR______________________
30 June 2016Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.