ADE/17/61
DETERMINATION NO. EDA189
ADJ-00005146 CA-00005703-001
SECTION 44, WORKPLACE RELATIONS ACT 2015
SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
PARTIES :
A RESPONDENT
(REPRESENTED BY CHIEF STATE SOLICITORS OFFICE)
- AND -
AN APPELLANT
DIVISION :
Chairman : Mr Foley
Employer Member : Mr Marie
Worker Member : Ms Treacy
SUBJECT:
1. Appeal of an Adjudication Officer's Decision no: ADJ-000005146.
BACKGROUND:
2. The Worker appealed the decision of the Adjudication Officer to the Labour Court on the 18th July 2017 in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 11th January, 2018. The following is the Determination of the Court:
DETERMINATION :
Background
This matter comes before the Court as an appeal by The Appellant of the decision of an Adjudication Officer in her complaint that the Respondent discriminated against her on grounds of disability. The Adjudication Officer, in a decision dated 14th June 2017, found that the complaint was out of time.
The Court decided to deal with the issue of the time limits provided for in the Act at Section 77 as a preliminary matter in this appeal. That decision of the Court was made in view of the fact that any decision of the Court on that matter could be determinative of the entire case.
Position of the Appellant.
The Appellant, a teacher, submitted that she had been removed from office by decision of the Minister for Education and Skills dated 15th June 2015. She submitted that her failure to appeal that decision until 9th June 2016 was a result of psychotic illness which rendered her incapable of making a complaint to the Workplace Relations Commission within the time limit set out in the Acts.
The Appellant contended that because her removal from office continues she continues to suffer discrimination on grounds of her disability.
Evidence on behalf of the Appellant
Evidence on behalf of the appellant was given by her sister.
The witness stated that she accompanied the Appellant to a meeting with a member of DailEireann in autumn 2015. She stated that the Appellant was asked by the member of DailEireann to gather some information. The witness stated that in subsequent phone calls to the Appellant she felt that the Appellant was not able to gather that information and sounded like she was not well. She stated that she was concerned about her. She stated that she believed that the Appellant was not taking her medication in autumn 2015. The witness stated that she did not know if the Appellant was in employment in Autumn 2015.
Position of the Respondent.
The Respondent submitted that the fact of having a psychotic illness cannot, on its own, be accepted as a reasonable cause for a failure to make a complaint to the Workplace Relations Commission within the time limits provided in the Acts. The Respondent submitted that a handwritten note from the outpatient department which the Appellant attended dated 15th October 2015 noted ‘nil psychotic features’ and that she had settled into the new job. The Respondent submitted that there is no causal link between the Appellant’s psychotic illness and her failure to make her complaint to the Workplace Relations Commission within the time limit provided in the Act.
The Law Applicable
Section 77(5) of the Acts in relevant part provides as follows:
(5) (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 F118 Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant 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.
Section 77(5) (b) of the Act essentially provides that where reasonable cause is shown for a delay in presenting a claim under the Act within the 6 month time limit provided for at section 77(5)(a) may be extended to a period not exceeding 12 months.
Discussion and Conclusions
The Appellant was removed from her post by the Minister for Education and Skills on 15th June 2015. She made her complaint to the Workplace Relations Commission alleging discrimination on grounds of disability on 9th June 2016. A complaint made within six months of the removal of the Appellant from her post would have to be received by the Court by 14th December 2015. The Appellant, in her complaint, claimed that she had been discriminated against on grounds of disability in the fact of her removal from office on 15th June 2015.
The Appellant, in her submission to the Court, contended that while she was removed from office on 15th June 2015 the fact that she remained in a position of being removed from office meant that she suffered continuing discrimination. The Court cannot accept this proposition. The act complained of is the Appellant’s removal from office and this is the most recent act in respect of the Appellant’s employment. The removal from office clearly has a continuing effect insofar as the Appellant remains removed from office but no further acts which could be contended to be discriminatory took place after the 15th June 2015. Consequently, the Court finds that the last alleged act of discrimination can only be taken to be the act of removal of the Appellant from office on 15th June 2015.
Therefore, the Court, in the within matter, must consider the application of the Appellant for extension of the time permissible for the making of a complaint under the Act to be an application for an extension beyond the six month period ending on 14th December 2015. In order for the Appellant to succeed in her application she must establish that her failure to make her complaint by 14th December 2015 was for reasonable cause.
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 WTC0338 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.
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.
The Appellant in the within matter submitted that the reason for the delay in referring her complaints under the Acts was her history of psychotic illness. The Court received no medical evidence to support her contention that illness prevented her from making a complaint to the Workplace Relations Commission within the time-frame laid down in the Act. The Court did hear evidence from the Appellant’s sister to the effect that in Autumn 2015 she was concerned that the Appellant, when telephoned on a number of occasions, did not appear to be able to engage with certain tasks arising from an earlier meeting.
The Court notes that the Appellant secured full time employment shortly after her removal from office and that she remains in that full-time employment. The Court notes the Appellant’s assertion that she underwent a training programme in that employment following recruitment. The Court notes her assertion at the hearing of the Court that she was well in the period from 15th June 2015 to 14th December 2015. The Court notes the Appellant’s submission which confirms that she was in receipt of professional advice in September 2015 from her Trade Union and from a legal senior counsel in relation to the set of facts which gave rise to her complaint to the Workplace Relations Commission. Finally, the Court takes account of medical detail in the form of medical notes from an out-patient department attended by the Appellant made in October 2015. The Appellant agreed at the hearing of the Court that those notes confirmed that the Appellant was well at that time.
The Court does not make any findings as regards the mental health of the Appellant at the material time. However, the Court, noting the medical assessment supplied by the Appellant and her own confirmation that she was well during the relevant period, finds that the Appellant’s mental health did not prevent her from making her complaint within the time-frame set out in the Act. The Court is fortified in this finding by the fact that, during that six month period, the Appellant had the benefit of both legal advice and the services of her Trade Union.
Taking the foregoing into account, the Court does not accept that the Appellant has established that her failure to present her complaint to the Workplace Relations Commission within the time limit provided at Section 77(5)(a) was for reasonable cause. The Court does not accept that the reason proffered by the Appellant for the delay in presenting her claim both explains and justifies the delay. Therefore her application for an extension of the time allowed under Section 77(5) of the Acts fails.
Determination
The Court determines that the Appellant has not established reasonable cause for the delay in presenting her complaint to the Workplace Relations Commission. The decision of the Adjudication Officer is affirmed and the within appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Foley
JD ______________________
17 January 2018 Chairman
NOTE
Enquiries concerning this Determination should be in writing and addressed to John Deegan, Court Secretary.