EDA192

This matter comes before the Court as an appeal by Emilia Luczak (the Claimant) of a decision by an Adjudication Officer in her complaint that her then employer, Berendsen Ireland Limited (the Respondent), discriminated against her on grounds of gender and family status contrary to the Employment Equality Acts 1998 to 2015 (the Act). The Adjudication Officer addressed the question of time limits for the making of a complaint under the Act. The Adjudication Officer decided that the complaint to the Workplace Relations Commission (WRC), made on 3^rdOctober 2017, was made outside of the time limit of six months laid down in the Act at Section 77(5)(a).

Summary position of the Claimant

The Claimant contends that the last act of discrimination giving rise to her complaint to the WRC occurred on 24^thNovember 2016. On that date she left her employment in advance of the birth of her child which was expected in January 2017. She did not return to work thereafter. She submitted that she was unable to deal with the effects of harassment she had suffered to the degree that she was unable to make the within complaint to the WRC. She submitted that she was not able to consult a solicitor in respect of the within matter until she had seen a medical specialist in or about July 2017. She did not consult a solicitor in July 2017 but for various reasons set out by the Appellant the within complaint was not made to the WRC until 3rd October 2017.

She submitted that the health challenges she faced between November 2016 and July 2017 taken together with the factors set out by her representative in terms of the circumstances of her solicitor from July 2017 onwards constitute reasonable cause for the extension of time for the making of the within complaint.

Summary Position of the Respondent

The Respondent submitted that the last alleged act of discrimination in the within matter is contended by the Claimant to have occurred on 24^thNovember 2016. There has been no evidence tendered to support a contention that the Appellant was inhibited as a result of her health to make a complaint to the WRC within the time period allowed in the Act. In particular, the Respondent submitted that the Claimant was in a position immediately following the 24^thNovember 2016 and prior to the birth of her baby in January 2017 to make a complaint to the WRC.

The Respondent submitted that there was no reasonable cause for the Claimant’s failure to make a complaint to the WRC within the period allowed by 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 six-month time limit provided for at section 77(5)(a), that time period may be extended to a period not exceeding 12 months.

Discussion and Conclusions

The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court DeterminationWTC0338 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.

Then Claimant has submitted that the last date of alleged discrimination was 24^thNovember 2016. Therefore, having regard to the Act at Section 77(5)(a), any complaint should have been lodged with the WRC by 23^rdMay 2017. The Claimant made her complaint to the WRC on 3^rdOctober 2017.

The Court has given careful consideration to the submission of the Claimant as regards the challenges she faced in the period from 24^thNovember 2016 to 23^rdMay 2017 in submitting her complaint to the WRC. Those challenges related to her health. She submitted that those challenges persisted as a barrier to her making a complaint up to July 2017 and represented a reasonable cause for delay in the making of a complaint. The Claimant submitted a letter from a medical practitioner dated 8^thJanuary 2019 in support of her submission as regards her health challenges.

The Claimant submitted that she consulted her solicitor in July 2017.

The Claimant’s complaint was submitted to the WRC on 3^rdOctober 2017. The Claimant’s representative, when questioned by the Court, submitted that the delay from July to October 2017 in making a complaint arose from

• 
  (a) A data access request having been made

  (b) A lag generally in the work of legal practitioners in July and August of each year

  (c) The challenges of workload in a small legal practice

  (d) The fact that the Appellant’s solicitor had to investigate the matter.

The Claimant’s representative has set out reasons which are recounted above and which are contended to be causative of the further delay from July 2017 to 3^rdOctober 2017.

The Court concludes that the reasons advanced for delay from July 2017 to 3^rdOctober 2017 cannot be found to be reasonable cause for that delay within the meaning of the Act. The fact of a data request having been made by the Claimant’s solicitor cannot be found by the Court as prohibiting a complaint being made to the WRC. Neither can the Court find that any matter related to the general functioning of a small legal practice or the profession in general in July and August was causative of the delay in this matter. No submission has been made to that effect and in any event the Court is clear that the Claimant’s case was presented to the solicitor and accepted by that practice in July 2017 when the period for the making of an appeal had already expired. That can only reasonably be concluded to have presented a set of circumstances whereby an appeal at that point would have been considered to be an urgent matter. Finally, the Court has had no submission as to how the fact of the Claimant’s solicitor investigating the matter was causative of a delay from July to October 2017.

Taking the foregoing into account, the Court accepts that the Claimant may have had reasonable cause for her failure to present her complaint to the WRC before July 2017. The Court does not accept however that the reason proffered by the Claimant for the delay in presenting her complaint from July 2017 to 3^rdOctober 2017 both explains and justifies that delay. Any extension of time to account for the period from 23^rdMay 2017 to July 2017 cannot avail the Claimant in bringing her complaint made on 3^rdOctober 2017 within time as regards an alleged discriminatory Act occurring no later than 24^thNovember 2016. The Court therefore finds that no order for an extension of time is appropriate.

Therefore, the Claimant’s application for an extension of the time allowed under Section 77(5) of the Acts fails.

Determination

The Court determines that the Claimant has not established reasonable cause for the delay in presenting her complaint to the WRC. The decision of the Adjudication Officer is affirmed and the within appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Foley
4th February 2019______________________
SCChairman



NOTE

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