EDA1921

Background

The Complainant commenced employment with the Respondent in December 2009 as a Quality Control Assistant and in February 2014 her role changed to that of Purchasing Assistant. The Complainant has been absence on sick-leave since 20^thAugust 2015. It is the Complainant’s case that a number of incidents occurred in the work place which resulted in her making a complaint in relation to her manager and ultimately resulted in her going on sick leave. During that period the Complainant who had infertility issues was undergoing IVF treatment. It is the Complainant’s contention that infertility falls within the definition of “a disability” as defined by the Act. In terms of returning to work the Complainant had sought as a reasonable accommodation that she be allowed report to a different manager or work in a different area.

It is the Respondent’s case that the Complainant does not have a disability within the meaning attributed to it under the Acts and even if she did have a disability they did not discriminate against her in any way. The Respondent raised three preliminary issues 1) that her complaint is out of time 2) there are no reasonable grounds for extending the time limits and 3) infertility is not a disability.

In relation to the Complainant’s complaint against her manager the Respondent tried to process the complaint, but the Complainant confirmed at a meeting in February 2016 that she did not want to proceed with her grievance at that point in time and declined all further opportunities to progress her grievance.

With the agreement of the Parties the Court decided to deal with the preliminary issues first and invited the parties to make further submissions on those issues.

Preliminary issue

1) Time Limits

The time for bringing a claim of discrimination under the Actis six months from the date of occurrence of the discrimination or the most recent occurrence. The Complainant lodged her claim with the WRC on the 4^thNovember 2016 therefore the cognisable period for the purpose of the Act is 5^thMay 2016 to the 4^thNovember 2016.

Complainant’s case

It is the Complainant’s case that the discrimination was ongoing and crystallised on the 19^thOctober 2016 when the Respondent reverted to correspondence from the Complainants representative. In particular the Complainant is relying on a line in the last paragraph of page one of that letter where the Respondent states that they “are at a loss as to what more can be expected of the Company in this situation”. It is the Complainants submission that, as there was no attempt in the letter to address the Complainant’s request for reasonable accommodation the correspondence is an act of discrimination within the cognisable period. The Complainant also submitted that the discrimination has been ongoing since 2013.

In the alternative it is the Complainant’s submission that the meetings on the 3^rdand 17^thof February 2016 constituted acts of discrimination when the Respondent would not facilitate her returning to work and reporting to a different Manager. It is the Complainants submission that she should be granted an extension of the time limit which would bring these incidents within the cognisable period. It is her contention that there is reasonable cause to justify the extension in that the Complainant was undergoing IVF treatment up until September 2016. While it is not disputed that the Complainant had the benefit of legal advice since May 2016. It is the Complainant’s case that the Respondent’s were not prejudiced by the delay.

Respondent’s case

It is the Respondent’s position that it did not discriminate against the Complainant and that the Complainant as failed to identify an act of discrimination within the cognisable period or at all. The letter of the 19^thOctober was a reiteration of the Respondent’s position that they were prepared to process the Complainant’s grievance but could not do so unless she was willing to engage with the process. It went on to outline that neither the Complainant, her GP nor Occupational Health had indicated that the Complainant required any appropriate measures to facilitate her return to work.

It was the Respondent’s submission that the letter reflected a conversation that had taken place with the Complainant in which she had expressed a view that she might be prepared to return to another department but only if there was work within her experience in matters of Quality. It was explained that work of that nature only existed in the Quality Department where the Complainant was working prior to going on sick leave. It is the Respondent’s position that nothing in that letter could be construed to be an act of discrimination within the meaning of the Act.

In relation to an extension of time it is the Respondent’s submission that no reasonable cause has been shown to justify the granting of an extension. It is clear from the correspondence received by the Respondent from the Complainant’s solicitor dated 23^rdMay 2016, 10^thJune 2016, 13^thOctober 2016 and 26^thOctober 2016 that during that period while she was still receiving IVF treatment she was in a position to give detailed instructions to her solicitor. It is the Respondent’s submission that there was no barrier to the Complainant making a complaint at any time during that period. The Respondent also noted that the Complainant’s treatment finished in September 2016, but she did not lodge her complaint until November 2016.

The Law

Section 77(5) of the Act states:

(a)Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

Discussion and Determination

This Court in Determination EDA1124Ann Hurley v Cork VECheld

• “that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation (or discrimination) within the time limit”

Section 77(5)(b) of the 1998 Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a period up to but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. 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 DWT0338,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 Complainant in the within appeal is relying on the fact that she was going through an IVF process and was out of work on sick leave as the reason for delay. However, in the same period the Complainant was instructing her solicitors who during the relevant period issued a number of letters to the Respondent. No explanation was given to the Court as to the circumstances which allowed the Complainant, instruct her solicitors on those matters, but prevented her from instituting proceedings in respect of this complaint. On that basis the Court determines the threshold of “reasonable cause” as defined by the Labour Court in Determination DWT0338,Cementation Skanska v Carrollhas not been met.

As the Court has determined that no act of discrimination within the cognisable period has been established and no “reasonable cause” for extending the time limits has been established the Court does not need to address the third preliminary issue raised.

Determination

For the reasons set out herein, the Court is satisfied that the Complainants complaint was out of time and no reasonable cause was established that would allow for an extension of time. The Complainant’s appeal cannot succeed and it is dismissed. The Decision of the Adjudication Officer is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR______________________
17 June, 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.