Complainant

Respondent

Anonymised Parties

A Sales Assistant

A Clothing Retailer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00020860-001

30/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00020917-001

01/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00020917-002

01/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00020917-003

01/08/2018

The respondent is a retail clothing business employing around 400 people in stores around Ireland.   The complainant commenced employment as a sales assistant on December 16th 2016. On June 11th 2017, he sent his area manager an e mail in which he made a complaint of sexual harassment by his store manager. He was dismissed on August 17th 2017. He claims that his dismissal amounts to victimisation for asserting his rights under the Safety, Health and Welfare at Work Act 2005 or, in the alternative, penalisation under the Protected Disclosures Act 2014.

At the hearing of this complaint, the respondent’s managing director and the HR manager said that the complainant was dismissed due to 14 incidents of lateness between December 2016 and March 2017 and because he was not meeting his key performance targets. The witnesses said that they were not aware of a complaint of sexual harassment until they received notification of the complainant’s submission to the WRC.

The store manager who was the subject of the complaint of sexual harassment was dismissed for misconduct in September 2017. He was never interviewed about the allegations made about him by the complainant. The area manager to whom the complainant sent the allegations of harassment has resigned and was not called to give evidence.

These complaints were sent to the WRC in two separate submissions on July 30th and August 1st 2018. On the complaint forms, the most recent date of discrimination is stated to be the date of dismissal, August 17th 2017. As the date of the alleged discriminatory act occurred more than six months before the complaint was received by the WRC, it was submitted that the complaints are out of time.

At the opening of the hearing, Mr Asmussen argued for an extension of time. In the complainant’s submission, by way of explanation for the delay, Mr Asmussen said that when nothing was done about the complainant’s report of sexual harassment, this resulted in the passing of time. He also said that due to his financial circumstances when he was dismissed, the complainant couldn’t afford to get legal advice.

Shortly after he was dismissed, the complainant sent complaints to the WRC under the Unfair Dismissals Act 1977 and the Industrial Relations Act 1969. In his evidence, he said that he telephoned the WRC and he was advised to lodge complaints under these Acts. A hearing was scheduled three times and adjourned three times. The first hearing was adjourned because the complainant put the incorrect address of the respondent on his complaint form and the notification of the hearing was sent to the wrong place. It was adjourned a second time because the respondent’s solicitor was unavailable. The third adjournment was because the complainant moved house and the notice of the hearing was sent to his former address.

The parties attended an adjudication hearing on the fourth occasion it was scheduled on August 1st 2018, with my colleague, Jim Tobin presiding. As the complainant hadn’t completed 12 months’ service with his former employer, Mr Tobin advised him that he could not apply for redress under the Unfair Dismissals Act. The complainant said that he had recently consulted a solicitor and that he wished to withdraw his complaint under the Industrial Relations Act. He said that he intended to submit new complaints. I understand that he was advised that any new complaints may be out of time and he was requested to ask his solicitor to explain the reason for submitting complaints at this late stage. No submission was received prior to this hearing on March 5th 2019.

Explaining why these complaints under the Equality, Health and Safety and Protected Disclosures Acts were submitted more than 11 months after his dismissal, the complainant said that he didn’t consult a solicitor until the previous hearings had been adjourned. In his evidence, he said that when he was dismissed, he felt confident about his case and that he didn’t think he needed legal advice. He said that he went on the advice of someone from the WRC who, he said, told him to submit complaints under the Industrial Relations Act and the Unfair Dismissals Act. When the hearings were adjourned, he said that he became anxious and he felt that he needed the support of a solicitor.

For the respondent, Ms McMahon argued that these complaints were submitted 11 months and two weeks after the complainant was dismissed and more than one year after the date on which he alleges that sexual harassment occurred. She argued that even the 12-month time limit for submitting a complaint under the Employment Equality Act has not been met. In respect of the complaint under the Safety, Health and Welfare at Work Act, section 28(4) of the Act provides that an adjudicator may, if he or she considers it reasonable, hear a complaint that has been submitted within six months after the expiry of the initial six months of the date of the contravention. Ms McMahon also referred to the provision at section 1(7) of schedule 2 of the Protected Disclosures Act, which permits me, as the adjudicator, to allow an extension of six months after the expiry of the initial six months from the date of contravention, if I am satisfied that failure to submit the complaint within the first six months was due to exceptional circumstances. She said that no exceptional circumstances have been put forward, and no reasonable cause has been submitted for presenting these complaints outside the six-month time limit.

Section 77(5)(a) of the Employment Equality Acts sets out the time-frame within which a complaint must be referred to the WRC:

“Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after 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.”

Paragraph (b) provides that where there is “reasonable cause,” there may be an extension of the time limit from six to 12 months. As submitted by Ms McMahon and, as set out above, the same “reasonable cause” applies to an extension of time under the Health, Safety and Welfare at Work Act 2005.   Under the Protected Disclosures Act, the requirement is stricter and requires the employee to show that “exceptional circumstances” applied. I intend to consider the application to extend the time limit under the criterion of “reasonable cause.” I also intend to assume that the date of dismissal, August 17th 2017, was the last date on which discrimination, if it occurred, could be said to have occurred.

Application to Extend the Time Limit to 12 Months

The facts are as follows:

Shortly after his dismissal on August 17th 2017, the complainant submitted complaints under the Unfair Dismissals Act and the Industrial Relations Act. He claims that he did this following a telephone call to the Information and Customer Services section of the WRC.

These complaints were scheduled for a hearing but were adjourned three times for three separate reasons.

On July 25th 2018, the complainant consulted a solicitor.

On July 30th and August 1st 2018, new complaints were submitted to the WRC under the Employment Equality Act 1998, the Safety, Health and Welfare at Work Act 2005 and the Protected Disclosures Act 2014.

Also on August 1st 2018, the complainant and representatives for the respondent attended the WRC for a hearing of the complaints submitted in August 2017.   The complainant was advised that he could not proceed with a complaint under the Unfair Dismissals Act and he withdrew his complaint under the Industrial Relations Act. At the hearing, the complainant said that he intended to submit new complaints.

Consideration of the Explanation for the Delay

Two possible causes for the delay in submitting these complaints were presented in the complainant’s written submission at the hearing. The first is that, between June 11th and August 17th 2018, the respondent took no action to deal with the complainant’s allegations of sexual harassment. As I have settled on August 17th 2017 as the date on which discrimination could be said to have occurred, the gap of two months between the report of the allegations and the date of dismissal is not relevant.

Secondly, Mr Asmussen submitted that the complainant could not afford to consult a solicitor because he was dismissed. In his evidence, the complainant said that he went on holidays after his dismissal and that he started work four weeks later. It would appear therefore, that the complainant’s financial circumstances were not radically altered as a result of his dismissal, and in fact, he may have been better off in his new job.

At this hearing to enquire into his new complaints, the complainant said that he failed to submit them within the six month time limit because he only got legal advice 11 months after he was dismissed. When he was dismissed, he said that he felt that he had a good case and that he didn’t need legal advice, but he changed his mind when the hearings were adjourned.   He submits therefore, that the cause of the delay was because he did not consult a solicitor until 11 months after he was dismissed.

The established test for deciding if an extension should be granted is set out in the Labour Court case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll, DWT0338. Here, the test for reasonable cause for extending the time limit to 12 months was set out as follows:

“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’s explanation that he decided to consult a solicitor 11 months after his dismissal does not, in my view, meet the standard set out in the Cementation case. He said that he decided to get legal advice because of the adjournments; however, nothing arose from the adjournments and no new information became available to suggest that matters had become any more onerous or complicated than on the day he was dismissed. There was no malign intention or outcome from the adjournments and the fact that the early hearings were adjourned does not point to a requirement for legal advice that may not have existed beforehand.

It is my view that the complainant’s explanation that he submitted complaints under the Unfair Dismissals Act and the Industrial Relations Act in error on the advice of the WRC is not entirely credible. I made enquires with the Information and Customer Services section and I am satisfied that specific advice about how to make a complaint is not given on the telephone. The website of the WRC and the Citizen’s Information Centre is clear about the one-year service requirement of the Unfair Dismissals Act and information about complaints of discrimination is also widely available. In his evidence, the complainant said that, when he was dismissed, he was confident about his case and he was clear that he was discriminated against because he is homosexual. With this understanding, and even without legal advice, he could have considered the option of a complaint under the Employment Equality Act.

In the Cementation case, the chairman considered how an explanation for a delay in submitting a complaint must be assessed:

“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 complainant submits that the time taken to submit his complaints of 11 months and two weeks is justified because, he changed his mind about getting legal advice when the hearings of his first complaints were adjourned three times. No new information emerged from the adjournments.   Also, from the evidence adduced at the hearing, the complainant was not in possession of any new information between the date of his dismissal and the date that he consulted his solicitor.  

It is my view that the complainant’s evidence in respect of the conduct of his former manager was credible and the behaviour he complained about was unacceptable and humiliating. However, I find it difficult to make a connection between the complainant’s dismissal and the fact that he submitted a complaint about his manager and I am not entirely satisfied that he has an arguable case in respect of victimisation and penalisation.

Having considered all these issues, I find that the explanation that the complainant has given as the reason for the delay in presenting his complaints is not of adequate significance for me to permit an extension beyond the six month time limit set out in each of the statutes.

It is my view that the explanation put forward by the complainant does not constitute a reasonable cause for the delay in submitting his complaints on time. On this basis, I conclude the investigation and find against the complainant.      

Complaint is out of time, extension of time