ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00005512

Parties:

Complaint:

Date of Adjudication Hearing: 01/06/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

Preliminary Issue: Time limit

Complainant

The Complaint subsequent to submitting his complaint to the Commission wrote on 18^th October 2016 setting out his reasons why the time limit should be extended. He initially submitted a grievance to his employer and wanted an explanation from them and to deal with it in an amicable way, while getting to the truth of the situation. Initially on 27^th April and then 12^th July he queried the outcome of his grievance. He was then advised on 19^th September that it was dealt with in an informal way. The Respondent has been extremely slow and unresponsive in replying to him. He had to refer to the Office of the Information Commissioner regarding the Respondent’s failure to issue information within the specified time. He also stated that he was unwell for the last number of months suffering from ongoing mental health issues which has meant that there are periods of time when he is unable to address these matters. He advised that he consulted a solicitor in February /March 2016 and discussed options of referring a complaint to the Workplace Relations Commission. They also discussed time limits so he was aware that they applied. An extension to the time limit should be granted.

Respondent

The Respondent stated that this complaint has been referred to the Commission outside the 6-month time limit allowed in the legislation. He made an application for a post and was advised in November 2015 the he was unsuccessful. From 1^st December 2015 he engaged with the Respondent regarding his failure to be recommended for appointment. At the time he was alleging discrimination but there was no mention of a disability as the reason he was alleging discrimination. He engaged a solicitor in April 2016 and so had access to independent legal advice. He did not raise the matter of disability until 12^th July 2016. Even at that time he was outside the 6 month time limit. He stated in an email on 12^th July that he intended to refer a complaint under the Employment Equality legislation he continued to delay for a further 3 months and did not refer the complaint until 2^nd October 2016. No reasonable cause exists for extending the time limit. They cited the Labour Court case Cementation Skanska and Tom Carroll DWT 0338 in support. No justification exists for the delay in referring this complaint. He was aware of the circumstances of this case. He made allegations of discrimination approximately a week after being informed he did not obtain a post. There was no reference to disability at that stage. Even when he stated that he intended to make a complaint under the legislation he delayed for almost 3 months prior to doing so. There was no reason why the Complainant could not have referred a complaint within the 6 month time limit under the legislation.

Decision on Time limit

Sec (6) of the Workplace Relations Act states,” Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

Sec 8 states, “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause”.

Reasonable Cause

I note that the Labour Court in the Cementation Skanska and Tom Carroll DWT 0338 case stated, “, it is noted that the standard required by this subsection is that of “reasonable cause”. This may be contrasted with the much higher standard of “exceptional circumstances preventing the making of the claim” which is provided for in other employment related statutes. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case. It is the Courts 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 his or her 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 the context in which the expression reasonable appears in the statute it imports an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material 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”.

I note that the alleged act of discrimination took place in November 2015 when the Complainant was unsuccessful in an application for a post with the Respondent.

I note that he raised this as a grievance as early as 1^st December 2015.

I note the Complainant’s evidence that he consulted a solicitor in February or March of 2016. He advised the hearing that they considered making a complaint to the Workplace Relations Commission and they discussed the time limits that apply.

I note that the matter of a disability did not raise itself until 12^th July 2016.

I note that he stated that he never told the Respondent that he had a disability. He had depression but it was not explicitly known. He doesn’t know if his managers knew. He didn’t tell them because of the stigma attached to mental illness. They did know that he had a breakdown.

I find that no medical evidence was adduced to support his request for an extension to the time limit.

I find no evidence from the Complainant that explains the delay in presenting the complaint.

He had raised a grievance as early as 1^st December 2015 and having consulted a solicitor, discussed time limits he did not refer a complaint to the Commission until 3rd October 2016.

I find that the complaint was not presented to the Commission within the 6-month time limit allowed in this legislation.

I find that this complaint is out of time.

Decision:

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

For the above stated reasons I have decided that this complaint was presented to the Commission outside the time limit allowed.

I have decided that no reasonable cause has been established to extend the time limit.

I have decided that as a result of the late application to the Commission I do not have jurisdiction to deal with this case.

Dated:   14^th July 2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

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