Complainant

Respondent

Anonymised Parties

General Operative

Hardware Retailer

Representatives

Self

Peter McKenna, B.L., instructed by Cooke   & Kinsella Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 77    of the Employment Equality Act, 1998

CA-00010847-001

16/04/2017

The complainant commenced employment with the respondent   as a General Operative in April 2005.   At the time of the termination of his employment the complainant was   working 24 hours per week with gross pay of €300.00 per week. The complainant had originally been   employed in a full-time capacity. This   was subsequently reduced to a 4 day week and in 2009 further reduced to a 3   day week. The complainant stated that   he had continuously requested a return to full-time employment but had been   refused same. He felt that he was   being treated differently in work duties and work facilities to other staff   because he was not Irish. The   complainant believed that members of the owner’s family were treated   preferentially to him. On 23 September   2016 the complainant wrote to the respondent requesting full-time   employment. When this was refused the   complainant wrote again to the respondent asking that he either be given   full-time employment or be made redundant.   He also raised issues about his employment. Following a meeting the complainant gave   one week’s notice of resignation from employment.  

The complainant’s hours were reduced without agreement.

The complainant believes that he was treated differently   in the workplace because he was Polish.

The complainant felt excluded from conversations and had   to take his breaks in a separate area from other staff.

The complainant used to drive the lorries doing deliveries   but that job was given to other staff.

The complainant’s photo was not included in the staff   photos that were on the respondent’s website.

The complainant is out of time as regards lodging his   complaint.

A number of staff had their hours reduced at the same time   as the complainant when the recession hit the building trade. These staff were Irish. The complainant did not raise a complaint   in this regard until September 2016.

Any new staff recruited were for specific duties for which   they were qualified.

The complainant was not present when the photographer took   the photos for the website. Other   staff absent on that day did not appear on the website either.

The respondent could not make the complainant redundant   as, in law, there was not a redundancy situation in the company.

It was accepted that the correct title of the respondent   in this case is Osborne Brothers Ltd.

Preliminary Issue:

The respondent’s representative raised an objection to the   complaint being a valid complaint as it was lodged after the expiry of the   relevant limitation period of six months. Section 77(5) of the Employment Equality   Act, 1998, states:

(a)      Subject   to paragraph (b), a claim for redress in respect of discrimination or   victimisation may not be referred under this section after the end of the   period of 6 months from the date of occurrence of the discrimination or   victimisation to which the case relates or, as the case may be, the date of   its most recent occurrence.

(b)      On   application by a complainant the Director General of the Workplace Relations   Commissionor Circuit Court, as the   case may be, may, for reasonable cause, direct that in relation to the   complaint paragraph (a) shall have effect as if for the reference to a period   of 6 months there were substituted a reference to such period not exceeding   12 months as is specified in the direction, and, where such a direction is   given, this Part shall have effect accordingly.

(c)       This   subsection does not apply in relation to a claim not to be receiving   remuneration in accordance with an equal remuneration term.

In response the complainant submitted that because of his   poor ability in relation to written English the application form had been   filled in on his behalf by his wife and that she had mistaken the date of his   last day of employment and consequently had mistaken the deadline date for   the application to be lodged. The   complainant requested that the time limit be extended to 12 months. The respondent’s representative argued that   this explanation did not fit the criteria of “reasonable cause” required by the legislation.

I have examined the documentation and the evidence in this   regard provided at the hearing. The   complaint form was lodged with the WRC on 16 April 2017. In that form the date employment ended is   given as 17 October 2016. There is a   letter from the complainant dated 7 October 2016 giving one week’s notice of   terminating his employment on 13 October 2016 and a letter from the   respondent dated 6 October 2016 accepting the complainant’s resignation and   stating that he could leave on 7 October 2016 and be paid up to 14 October   2016. The complainant, in evidence at   the hearing, accepted that his final date of working was 6 October 2016. I note also that the complainant had been   resident in the country for about 11 years at the time of his resignation.

The issue of reasonable cause has been considered by the   Labour Court. The Court stated that   there was an onus on the complainant to show that “there were reasons which both explain the delay and afford an excuse   for the delay.” The Court went on   to say that “the explanation must be   reasonable, that is to say it must make sense, be agreeable to reason and not   irrational or absurd.”   The Court   also said that “the claimant’s failure   to present the claim within the six-month time limit must have been due to   the reasonable cause relied upon” and that “the claimant must satisfy the court that, had those circumstances   not been present, he would have initiated the claim on time.”

The reason given for the delay was that there was an error   made as to the complainant’s termination date by his wife (who filled in the   form on his behalf) which consequentially led to an error as to the deadline   date for submission of the complaint.   I have given careful consideration to this matter but must conclude   that this explanation does not fall within the criteria laid down by the   Court. In particular, I am not   satisfied that the circumstances outlined by the complainant prevented the   complaint being lodged within the six-month period following the termination   of employment. The complainant has   failed to prove that there was a reasonable cause for the delay and therefore   the request for an extension of the time limit must fail.

I have decided that the complaint was not lodged within   the time limits provided for in the legislation and that the complaint   therefore fails.