Complainant

Respondent

Parties

Michael Wall

Molloy Group trading as Southside Taverns

Representatives

Rosemary Scallan & Company, solicitors Daniel Kelleher BL                             and Jennifer Cuffe BL

Shaffrey & Company Solrs               Mairead McKenna BL            

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00022981-001

01/11/2018

The Complainant has brought a complaint by way of workplace relations complaint form dated the 1st of November 2018. He states that he was discriminated against by the Respondent public house by reason of his being a member of the travelling community.

The Complainant says he was told he would not be served in the Respondent public house.

The Respondent states that it was policy not to allow birthday celebrations on the premises.

I have carefully considered the submission made by both parties herein. Unusually, I have agreed to deal with the preliminary issue raised herein as a stand-alone issue and have therefore not moved to the substantive matter.

On the 13th of February 2019 this matter was listed before the WRC for the purpose of having all the matters complained of heard. I accept that the Respondent had put the Complainant on notice of the fact that quite apart from denying the allegations set out in the substantive claim, it would also be raising a preliminary issue relating to delay.

Section 41(6) of the Workplace Relations Act 2015 provides that:

“Subject to Section (8) an adjudication officer shall not entertain a complaint referred to him or her under this section, if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”.

And Section 41(8) of the 2015 Act states that

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within the period was due to reasonable cause”

The case of Cementation Skanska -v- Carroll (Labour Court Determination DWT0338 (2003)) sets out the tests to be applied to determine whether “reasonable cause” has been shown and/or demonstrated such that allows for the extension of the Statutory time limit for the bringing of case ( for a period no greater that six further months). In this case the Labour Court stated that ”It is the Court’s view that in considering if reasonable cause exists:

a)      It is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.

b)      The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.

c)       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.

d)      The Claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.

e)       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.

f)        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.

g)      Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise it’s discretion in favour of granting the 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

I find that there is no doubt therefore that the Respondent was on notice of the fact that it would be required to address the issue of the late filing of this complaint as a preliminary issue.

I note that the incident which would ultimately give rise to this complaint occurred on the 8th of April 2018. All things being equal this would have given until the 7th of October 2018 for the filing of the Complaint. The Complaint was, in fact, lodged on the 1st of November 2018. I note that the Complainant had legal representation and it seems clear that the Complainant had notified his Solicitor of the incident within three or four weeks of it having occurred.

At the hearing on the 13th of February I was asked to consider a letter dated the 18th of November 2018 (from the Complainant’s Solicitor to the Director General of the WRC) wherein an explanation was sought to be established. The Respondent argued that the letter of itself did not demonstrate “reasonable cause” and that the facts asserted therein were not proven and were not capable of being proven without the author (the Complainant’s Solicitor) being present to give evidence and to be cross-examined in relation to the content of the said November letter..

As it happens on that day of hearing the Complainant’s Solicitor was unavoidably unable to attend the WRC hearing and although the Complainant had excellent representation on that date I indicated that “on the face of it” no “reasonable cause” had been demonstrated and I was willing to afford the Complainant an opportunity to mend the hand and bring the relevant witness on a second day. This was strenuously resisted by the Respondent but in the interests of allowing the Complainant present his best case, I was minded to allow the matter be put back for a new hearing date.

I am clear that the adjournment was granted on the basis that the Complainant was being allowed to present oral and or other supporting evidence to prove the facts being asserted in the November letter aforesaid and which purport to explain the delay in getting this complaint issued and to allow the Complainant overcome the burden of proof “…..that the failure to present the complaint or refer the dispute within the period was due to reasonable cause”.

I therefore confirm that the account (of what happened on the first hearing date) set out in the letter of the 14th of February 2019 from the Respondent Solicitor to the Complainant Solicitor is a fair representation of what happened on the 13th of February(the first hearing date).

On the second day of hearing – the 3rd of April 2019, I was advised that no such evidence was going to be available and whilst the Complainant’s Solicitor was present she exercised her right not to give oral evidence to support the assertions made in the letter of the 15th of November 2018 which seeks to show “reasonable cause”.

Representations were made by both the Complainant and the Respondent representatives about the application of the appropriate tests to show whether “reasonable cause” has been shown.

On balance I am satisfied that no causal link has been established between the circumstances cited in the letter of the 15th of November which it is said gave rise to the delay, and the fact of delay. There was clearly early interaction between the parties from which I must infer an early understanding that time was running. No reasons have been shown which both explain the delay and afford an excuse for the delay. On balance, I find that there is no objective reason which shows that the “reasonable cause” criteria has been satisfied. The time limit for the issuing of this complaint expired on the 7th of October 2018 and no reason for allowing an extension has been provided.

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 - CA-00022981-001

I do not have jurisdiction to deal with this complaint in circumstances where the complaint issued after the Statutory time limit imposed.