FULL RECOMMENDATION
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : BROTHERS OF CHARITY SERVICES ROSCOMMON (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - NIAMH LYNCH (REPRESENTED BY ARRA HRD LIMITED AND HAMILTON SHEAHAN & CO., SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No: DIR-E2017-001.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 28 March 2018. The following is the Determination of the Court:-
DETERMINATION:
This is an appeal by Ms Niamh Lynch (hereinafter “the Complainant”) against the Decision of an Equality Officer in her claim of discrimination on the gender ground against Brothers of Charity Services Roscommon (hereinafter “the Respondent”) under the Employment Equality Acts 1998 to 2011 (hereinafter “the Acts”). The Equality Officer found against the Complainant on two preliminary issues and did not hear the substantive case. Firstly, the Equality Officer found that the name of the respondent was incorrect on the original complaint form submitted and, secondly, he found that a subsequent application with the correct respondent name was submitted outside the six-month time limit prescribed by Section 77(5) of the Acts.
The Complainant appealed that Decision to this Court. The Court, therefore, proceeded to hear the preliminary issue only. The substantive claim was not opened to the Court.
The Complainant's originating application to the Equality Tribunal on 3rdDecember 2013 was directed against“Brothers of Charity”. When it was discovered that the incorrect respondent name had been cited in the form, the Complainant, through her legal representative, submitted a second complaint form and this was received by the Equality Tribunal on 2ndMay 2014.
The Complainant alleged that the discriminatory act took place on 4thJune 2013. Hence, the six-month time limit prescribed section 77(5)(a) of the Acts expired on 3rdDecember 2013. Section 77(5)(b) of the Acts provides, in effect, that the time for presenting a claim under the Acts may be extended for reasonable cause shown for a period up to but not exceeding twelve months from the date of the occurrence of the event giving rise to the claim. The Complainant sought an extension of time in respect of the second claim which was presented to the Equality Tribunal on 2ndMay 2014.
Background
In January 2013 the Complainant applied for an advertised position of Permanent Part-Time Manager - Mid-Roscommon Services with the Brothers of Charity Services Roscommon. She was successful in her application and was offered the position on 19th April 2013. By telephone call on 22ndApril 2013 to the HR Manager, the Complainant accepted the job offer and informed the Manager that she was pregnant. The following day she received a letter confirming the salary scale and other conditions. Further letters and telephone contacts took place between the Complainant and the HR Manager in May 2013 regarding her starting date, induction process, etc. On 21stMay 2013 the Complainant received a letter enclosing the original job offer for acceptance which she did accept. On 4thJune 2013 the Complainant was informed by letter from the HR Manager that the job offer was withdrawn as it no longer required the post for the foreseeable future.
Summary of the Complainant’s Arguments on the Appeal
The Complainant was represented by Mr Michael O’Sullivan Arra HRD Limited and assisted by Ms Roisín O’Shea of Hamilton Sheahan & Co., Solicitors. He advanced two grounds to this Court in support of the Complainant’s appeal against the Equality Officer’s Decision not to accept the original complaint and to refuse her application for an extension of time in respect of the second complaint. Mr O’Sullivan stated that in completing the original form the Complainant had inserted the name “Brothers of Charity” and given the address and telephone number as provided on the Respondent’s headed notepaper.
Mr O’Sullivan stated that, having submitted the form in December 2013, the Complainant then sought legal advice from a firm of Solicitors. It then became clear that there was an issue with regard to the legal entity cited on her complaint form and her Solicitor made contact with the Equality Tribunal which clarified the need to submit a new complaint form with the amended legal entity. Mr O’Sullivan said that it was not until a letter dated 28 March 2014 from the Equality Tribunal to the Complainant's Solicitors that there was confirmation that the original complaint form was submitted within the required six-month time limit. This letter suggested that an amendment to the legal entity required the submissionof a new complaint.
- Determination of Legal Entity
Mr O’Sullivan stated that the Complainant was not aware of the
significance of having the correct legal entity of the Respondent. It is further submitted that the organisation was and is commonly known and referred to as the “Brothers of Charity” and he submitted that her efforts to determine the correct legal entity make this a case of reasonable cause. He said that extensive research of the CRO website, subsequent telephone consultations with an official of the CRO and the search for "Brothers of Charity Services Roscommon Limited" yielded no result. In addition, he referred to the confusing headed notepaper of the Respondent with two different legal entities named and submitted that that is clear evidence of the difficulties in determining the correct respondent name. All correspondence receive by the Complainant regarding her application and approval for the position was under headed notepaper with the title of “Brothers of Charity Services Roscommon” and at the bottom of that headed notepaper it stated “Brothers of Charity Services Roscommon Limited”.
In support of his position, Mr O’Sullivan citedBallarat Clothing Ltd v Ann AzizEDA15 in which the Labour Court cited the decision ofO'Higgins v University College Dublin[2013] 21 MCA. In that case, Hogan J. addressed an error, such as the one in this case, which caused no prejudice to the respondent. Hogan J. held that, in the circumstances, to dismiss the appeal by reason of the technical error “would amount to a grossly disproportionate response and deprive the appellant of the substance of her constitutional right of access to the courts”.
- Extension of Time
In respect of the second complaint form containing the corrected Respondent details which was presented to the Equality Tribunal on 2ndMay 2014, Mr O’Sullivan sought an extension of time under the provision of Section 77(5)(b) of the Acts. The reasons given related to the difficulties encountered in determining the Respondent’s correct legal name. He said that on 11thMarch 2014 the Complainant’s Solicitors notified the Equality Tribunal that it wished to amend the Complainant’s complaint form in order to amend the Respondent’s details. By letter dated 28thMarch 2014 the Equality Tribunal informed the Complainant’s Solicitors that it would be necessary to submit a new complaint form. Having ascertained the correct Respondent details, the Complainant signed the new complaint form on 15thApril 2014. Mr O’Sullivan stated that due to Easter intervening and holidays taken the form was then submitted to the Equality Tribunal on 2ndMay 2014. On 29thMay 2014, the Complainant’s Solicitors wrote to the Equality Tribunal seeking an extension of time.
Summary of the Respondent’s Arguments
Mr John Brennan, Ibec, on behalf of the Respondent, initially disputed that the original complaint form was referred to the Equality Tribunal in time as it was date stamped 4thDecember 2103 - a day late. However, at the hearing before the Court, Mr Brennan accepted that evidence was produced which indicated that the complaint form was faxed to the Equality Tribunal on 3rdDecember 2013 and that therefore the original complaint was in time but cited a non-existent respondent. With reference to the second complaint submitted to the Equality Tribunal on 2ndMay 2014, Mr Brennan disputed the Complainant’s contention that there were reasonable grounds which both explain the delay and afford an excuse for the delay of five months since the expiry of the six-month period and eleven months since the alleged discrimination.
Mr Brennan submitted that the Complainant, if she was in any doubt, could have submitted complaints in respect of any or all possible variations of the Respondent’s name, Brothers of Charity Services/ Brothers of Charity Roscommon/ Brothers of Charity Services Roscommon Ltd. It would have protected her interests within the time limits provided for and within the rules and regulations concerning the proper title of respondents. Also, he submitted that had she referred her complaint earlier she would have had time to research which was the correct respondent and lodge within the proper time limit.
Mr Brennan made reference to the Respondent’s headed notepaper. He said that it states “Brothers of Charity Roscommon” at the top of the page and at the bottom of the page it states “Brothers of Charity Services Roscommon Limited” and gives the Company Registration No: 416973. However, the Complainant made her complaint against the Brothers of Charity (a non-existent employer/body) in her first claim which is nowhere referred to on the Respondent’s stationery. Mr Brennan stated that from 1stJanuary 2007 the Brothers of Charity Services Roscommon was the official "trading" name of the Services and this was incorporated by the Registrar of Companies on the 25th April 2007 under Certification of Incorporation on Change of Name Company Registration Number 416973. The Brothers of Charity Services
Roscommon was a company limited by shares. All correspondence
issued by the Services to the Complainant was issued on
formal headed paper of the “Brothers of Charity Services Roscommon”.
- Prejudice
Mr Brennan stated that if the Court found in favour of the Complainant the Respondent would be prejudiced as the HR Manager at the relevant time who dealt with the Complainant left the organisation in 2015 and was no longer available to it to counter anything the Complainant might say in evidence.
The Legal Principles
The issues arising in this appeal is whether or not the Court should accept the Complainant’s original complaint which cited “Brothers of Charity” as the Respondent and /or whether or not reasonable cause has been shown for the granting of an extension of time.
The Correct Respondent
The Court notes that the “Brothers of Charity” is an entirely separate legal entity to “Brothers of Charity Services Roscommon”. Mr Brennan told the Court that the former is a Religious Congregation of Brothers and a Determination against such a respondent would not be enforceable against the latter. He stated that had the Complainant cited “Brothers of Charity Services Roscommon” or “Brothers of Charity Services Roscommon Limited” there would be no issue with regard to the Respondent’s legal identity.
The Court notes that the Equality Tribunal’s complaint form asks a complainant to fill out the“Respondent’s/Employers Full Legal Details”. The Court also notes that prior to lodging her complaint in December 2013, the Complainant had received no less than four letters from the Respondent which clearly cited “Brothers of Charity Services Roscommon” in large bold lettering on its headed notepaper which also included a logo with those words on it. Furthermore, the Court notes that the Company Registration Number was clearly displayed on the headed notepaper and a search of the CRO Office clearly showed that the registered name was “Brothers of Charity Services Roscommon”.
On the basis of the above findings, the Court cannot accept that the original complaint form referred to the Equality Tribunal which cited “Brothers of Charity”, while submitted in time, could properly be accepted in respect of the Respondent in this case.
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 or not time should be 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 reason’ 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.”
Having regard to the jurisprudence on “reasonable cause”, summarised above, the Court finds in the instant case that the Complainant has failed to establish a link between the difficulties experienced in determining the correct name of the Respondent and the delay in lodging her complaint under the Acts. The original complaint form, which was submitted within time, was nevertheless presented on the very last day and no excuse was proffered for that tardiness which then clearly contributed to the ensuing delay when it was discovered that an incorrect respondent had been cited in the complaint form. In such circumstances the Court is of the view that there was no impediment in presenting the complaint within an earlier timeframe.
The second complaint form citing the correct Respondent was eventually submitted some eleven months after the alleged discriminatory act and this was a significant delay particularly in circumstances where the Complainant was legally represented since January 2014.
Her legal representatives discovered in January 2014 that there was a difficulty with the Respondent’s name as cited in the original complaint form and yet it was a further four months before a new claim was referred to the Equality Tribunal. The Court notes that even after the Complainant signed the new complaint form it was still almost four weeks later before that complaint form was lodged. The fact of Easter falling within those weeks and the taking of holidays could not be considered as a justifiable excuse for the further delay.
Furthermore, in reaching its conclusion, the Court has had regard to the stated position of the Respondent in opposing the application that its position has been prejudiced by the non-availability of a key witness in the intervening time.
Determination
On the basis of the foregoing, the Court upholds the Decision of the Equality Officer and finds that (i) the original complaint form referred to the Equality Tribunal which cited “Brothers of Charity” cannot be accepted in respect of the Respondent in this case and (ii) the Complainant has not established that there was reasonable cause justifying her delay of some eleven months in referring her complaint to the Equality Tribunal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
16 April, 2018.______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.