EDA1713

This is Juanita Wilson’s (“the Complainant”) appeal against a decision of an Adjudication Officer (ET-155382-EE-15) dated 1 June 2016. The Adjudication Officer dealt only with a preliminary issue i.e. whether or not the Complainant had established reasonable cause to permit him to admit her complaint of alleged discrimination contrary to the Employment Equality Act 1998 (“the Act”) on the gender and family status grounds outside the statutory six-month time limit. The Equality Officer found that the Complainant had not established reasonable cause for her delay in referring her complaint and he refused her application for an extension of time. The Complainant has appealed from that decision to this Court. The Court, therefore, heard evidence in relation to this preliminary issue only. The substantive claims were not opened to the Court.

Timeline of Relevant Events

The Complainant was employed on a fixed-term (specified purpose) contract of employment as a production assistant with Servier (Ireland) Industries Limited (“the Respondent”) from 6 January 2014. The Complainant was employed on a temporary contract for the purpose of providing cover for the duration of a permanent employee’s absence on maternity leave. The Complainant’s temporary contract came to its natural end on 27 June 2014 on the cessation of the permanent employee’s period of protective leave and her return to work.

In the meantime, the Complainant had become pregnant in February 2014. She gave birth on 14 November 2014. She referred her complaint to the Equality Tribunal on 14 April 2015 i.e. some 10 months after the most recent alleged discriminatory event, being the expiry of her specified purpose contract on 27 June 2014.

The Complainant advances two grounds to this Court in support of her appeal against the Adjudication Officer’s decision to refuse her application for an extension of time: (a) she experienced medical complications during her pregnancy; and (b) she was unaware of the relevant statutory time limit for bringing a complaint of discrimination. She submitted a letter from her GP by way of substantiating her first ground of appeal. This letter makes reference to an event that occurred some 8 weeks into her pregnancy, on or around 14 April 2014 (i.e. some 12 months before she lodged her complaint); ongoing stress during the Complainant’s pregnancy arising from the incident of 14 April 2014; and the Complainant’s hospitalisation a number of days before she was due to give birth due to fluctuations in her blood pressure. The latter two issues clearly occurred during, and are intimately related to, the Complainant’s pregnancy which ended when she gave birth on 14 November 2014. The actual time limit of six months from the most recent act of alleged discrimination complained of did not expire until 26 December 2014 i.e. some 6 weeks after the date on which her child was born.

The Complainant accepts in her submission to the Court that neither her educational status nor her lack of awareness of the relevant time limits applicable to complaints under the Act of themselves excuse her delay, nevertheless, she submits that “the cumulative effect of the reasons being adduced on [her behalf] can be taken into account” by the Court.

Discussion and Decision

The import of “reasonable cause” as used in section 77(5) of the Act (and in other employment-related enactments) has been the subject of some consideration by this court. The Court’s jurisprudence is conveniently summarised inSalesforce.com v Alli LeechEDA1615 wherein the Court stated:

• “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 DWT0338 Cementation Skanska (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 in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

  The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal 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 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.”

On the basis of the foregoing, the Court upholds the decision of the Adjudication Officer and finds that the Complainant has not established that there was reasonable cause justifying her delay of some 10 months in referring her complaint to the Equality Tribunal.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
19th May 2017______________________
SCDeputy Chairman



NOTE

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