Complainant

Respondent

Anonymised Parties

A Former Employee

A Telecommunications Company

Representatives

Self-Represented

Sinéad Mullins, Senior Executive, IBEC

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-00024495-001

02/01/2019

The Complainant’s commenced employment with the Respondent on 15 November 1999 and resigned on 2 January 2019 where she worked as an Online Specialist.

The Complainant claims that she was discriminated on the grounds of family status and as a result was victimised and treated unlawfully by discriminating against her in her conditions of employment and other.

The Respondent denies each and every allegation and put the Complainant on full proof.

The Respondent raised a preliminary objection that the complaint was lodged outside the six month time limited provided for under s.77 (5) of the Employment Equality Acts 1998-2011.

It wasconfirmed at the hearing the last most recent date of discrimination the Complainant alleges was on 25 May 2018. The complaint was referred to the Workplace Relations Commission on 2 January 2019.

Preliminary Objection

The Respondent submitted that the Workplace Relations Act 2015 provides that a complaint must be referred within six months of the alleged contravention of the legislation or in the case of an Employment Equality Act 1998-2011 claim, s. 77 (5) requires that a case must be brought within six months of the most recent occurrence of discrimination.

The Respondent argued that the complaint was lodged on 2 January 2019 with the last date of alleged discrimination was 25 May 2018. The six month time limit precludes the admission of claims related to any allegations preceding 1 June 2018. It was argued that all incidents prior to this date are outside of the time limit and therefore, outside the jurisdiction of this hearing.

The Respondent relied on the cases of Sacha v Seaview Hotel Ltd, (DEC-E/2016/055), Cementation Skanska v Carroll, DWT0338 and O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301

Preliminary Point

The Complainant’s claim under the Employment Equality Act 2011 relates to an allegation that she was discriminated on the grounds of family status due to the treatment by her employer, the Respondent, while on Carer’s Leave. The Complainant went on Carer’s Leave in November 2017 following a period of certified sick leave.

The Complainant gave evidence that she was discriminated by Respondent from 5 April 2017 following an email from the Employee Relations and Case Team Lead titled: “Unauthorised absence from work”.

Following an exchange of emails and phone calls between the Complainant and Employee Relations and Case Team Lead, the Complainant emailed the Human Resources Business Partner. She was furnished with a copy of the Grievance Policy on 1 June 2017. She gave evidence that nothing was resolved with this grievance but then stated that she was not in a position to proceed due to health issues with her son. On 18 October 2017, the Complainant got in touch with the Respondent when she raised an informal grievance.

On an unknown date in March 2018, the Complainant stated her grievance progressed when the certs were found, and the Respondent agreed to update their HR system noting that she was on Carer’s Leave. However, the Complainant did not feel this was the conclusion of the matter as she was of the view the Respondent never acknowledged or apologised for its mistake and was dissatisfied with the overall outcome. Subsequently, she issued a formal grievance on 26 April 2018 relating to her treatment by the Respondent in the alleged attempts to contact her while she was on Carer’s Leave, namely November 2016 – April 2017 and the email of 5 April 2017. There were a total of six grievances raised with two grievances relating to a contract dispute and outside the remit of this hearing and the third grievance relating to the time it took to deal with her grievance originally raised on 1 June 2017.

There was a second grievance lodged on 3 July 2018, which related to a matter outside the jurisdiction of this hearing and therefore cannot be taken into account. For the avoidance of any doubt, it is noted that this matter has been resolved as confirmed by the parties at the hearing.

The Complainant stated that the delay in submitting her claim to the Workplace Relations Commission was due to the length of time the Respondent took to deal with her grievance. She stated she was advised to complete the internal process before going to the Workplace Relations Commission. She stated she required time to put together her submission for the Workplace Relations Commission, which she began in November 2018 and was received, by the Workplace Relations Commission on 23 January 2019 with a follow up statement received 3 July 2019. The Complainant further submitted that she was the full time carer of her son during this time up to 3 May 2018 and was than on certified sick leave until the date of her resignation in January 2019.

The Complainant submits that the delay was outside of control and the delay in the internal grievance procedure rests with the Respondent.

Preliminary Point

S. 41(6) of the Workplace Relations Act 2015 sets out a time limit of 6 months beginning on the date of the contravention to present a case;

“Subject to subsection (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.”

S. 41(8) of the Workplace Relations Act 2015 allow for an extension to be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“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 that period was due to reasonable cause.”

The Labour Court laid out the test for extending time in Cementation Skanska v Carroll, DWT 38/2003 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 Labour Court found in Globe Technical Services Limited and Kristin Miller (UD/17/177), ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

The onus is on the Complainant to establish why there should be an extension of time.

There are three questions to be considered in this case:

Firstly, whether the Complainant submitted her claim within 6 months beginning on the date of the contravention:

In the instance where the complaint form was submitted to the Workplace Relations Commission on 2 January 2019 with the last date of alleged discriminated stated as 25 May 2018, I find that this claim is outside the six month time limited prescribed by the legislation.

I am therefore obliged to consider whether there is reasonable cause to extend time up to a maximum of 12 months, i.e. 1 January 2018:

This case can be distinguished from Globe Technical Services Limited and Kristin Miller (UD/17/177) where it was decided ignorance of the law cannot be relied upon as “reasonable cause” to extend time. The Complainant represented herself throughout her engagement with the Respondent and at the hearing. She was not professionally advised at any stage. While this of itself is not enough to satisfy the “reasonable cause” test, the distinction arises where the Complainant was a full-time carer looking after her son who has a life limiting condition. There is no question that the Complainant was focused on caring for son during this difficult time. It was not in dispute that she was on certified sick leave from May 2018 to January 2019.

I find that these particular circumstances satisfy the reasonable cause test and accordingly grant an extension of time for the maximum period of 12 months as prescribed by the legislation.

The third and final question now arises; whether the Complainant’s claims fall within the maximum 12 month time period beginning on the date of the contravention;

The Complainant’s claim under the Employment Equality Act 2011 relates to an allegation that she was discriminated on the grounds of family status due to the treatment by her employer, the Respondent, while on Carer’s Leave. The Complainant went on Carer’s Leave in November 2017 following a period of certified sick leave. It was her evidence that it was following an email received from the Employee Relations and Case Team Lead titled: “Unauthorised absence from work” that the discrimination began on 5 April 2017.

It was the Respondent’s evidence that they sought to resolve the grievance informally with an outcome issuing on 28 March 2018. The Complainant was not satisfied with the outcome. Subsequently, she issued a formal grievance on 26 April 2018 relating to her treatment by the Respondent in the alleged attempts to contact her while she was on Carer’s Leave, namely November 2016 – April 2017 and the email of 5 April 2017 referring to the attempts to contact her. On 3 July 2018, a 15 page investigation report was published by the Respondent in response to the Complainant’s 26 April 2018 formal grievance.

While participation in the internal investigation process is to be encouraged in an attempt to resolve grievances, it does not stop the time limits prescribed by legislation. In employment equality cases the option remains open to a Complainant to lodge a claim in parallel to an internal investigation to ensure compliance with the time limits.

Having carefully considered all the oral and written evidence , I find the date of contravention was 5 April 2017 which falls outside the maximum time limit of 12 months prescribed by the legislation.

In the circumstances where the discrimination complained of relates to correspondence in April 2017, I have no jurisdiction to decide on this case.

Due to the sensitivity of the case, it was agreed by both parties that this decision would be anonymised, and I do so accordingly.

Employment Equality – Family Status – Time Limits – Extension of Time – Reasonable Cause – Internal Grievance Process