EDA2011

This matter comes before the Court as an appeal by Garvan Harper (the Appellant) of a decision by an Adjudication Officer in his complaint that his employer, the Department of Employment Affairs and Social Protection (the Respondent), discriminated against him on grounds of gender 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 18^thJuly 2018, was made outside of the time limit of six months laid down in the Act at Section 77(5)(a).

Procedure of the Court

The Court decided to consider first, as a preliminary issue, the time limit set out in the Act for the making of the within complaint. The Court took this decision in the interest of efficiency and having regard to the fact that the determination of the preliminary matter had the potential to dispose of the entire matter.

Summary Position of the Appellant

The Appellant’s representative did not rely upon his written submission at the hearing of the Court but chose to address the Court viva voce.

Desmond Murphy, for the Appellant, submitted that the Appellant had made his complaint under the Act on 18^thJuly 2018 which was two months outside the time allowed under the Act for the making of a complaint.

Mr Murphy submitted that the delay in making the complaint was for reasonable cause and submitted that the time should be extended.

The Appellant attended a job interview on 13^thNovember 2017 and an interviewer commented that he looked like a convict in a photograph which accompanied his application documentation. That remark caused him to be agitated and he consulted his Trade Union. The Trade Union gave the Appellant incorrect advice as regards the course of action he might take in response to the events at the interview.

Ultimately the Appellant did his own research and initiated a procedure under the Equal Status Acts, 2000 – 2015 by serving Form ES1 in June 2018 upon the Respondent. That form is a notification required under the Equal Status Acts to be sent to a person or party about whom a complainant intends to make a complaint under that Act.

The Respondent did not respond to the ES1 Form until July 2018 whereupon the Appellant made a complaint under the Employment Equality Acts 1998 to 2015 to the WRC.

The Appellant’s representative submitted that his Trade Union’s failure to correctly advise him as regards his rights and entitlements constitutes reasonable cause within the meaning of the Act.

Summary Position of the Respondent

The Respondent submitted that the Appellant had not put forward reasons which would explain his delay in making a complaint within the time limit of six months allowed under the Act at Section 77(5)(a). The Respondent submitted that the Appellant had availed of the advice of his trade union throughout and had also, apparently, received legal advice within the period of six months following the impugned interview.

The Respondent submitted that the Appellant’s ignorance of the law cannot be an excuse for a failure to make his complaint on time. The Respondent drew the Court’s attention to the decision of Laffoy J in Minister for Finance v Civil and Public Services Union and others [2007] 18 ELR 36 IEHC where it was held that‘ignorance of the law could not be a justification for an extension of time’

The Respondent also submitted that any failure of the Appellant’s advisers could not be regarded as reasonable cause for the extension of time in bringing the within complaint.

The Law Applicable

Section 77(5) of the Acts in relevant part provides as follows:

• 77(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 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.

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 Determination WTC0338 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 Claimant has submitted that he had secured the advice of his trade union following his experience at a job interview on 13^thDecember 2017. He submitted that he had not been advised that he could make a complaint under the Act.

The Court has not had the benefit of a submission from the Appellant’s Trade Union on the matter of the Union’s alleged failure to advise him correctly. The Appellant has, however, submitted extensive documentation which demonstrates significant engagement between himself and his trade union exploring a range of possibilities for the advancement of his concerns as regards the job interview. In large part that documentation appears to identify the matter as a grievance rather than a concern as regards potential unlawful discriminatory behaviour on the part of the Respondent.

Those explorations appear to have included consideration of mediation, the Respondent’s grievance procedures and arbitration. The documentation submitted to the Court demonstrates that all such explorations ceased in April 2018. The Court notes that a complaint to the Workplace Relations Commission under the Act, were it to have been made within six months of the alleged act of discrimination, would require to have been made by 12^thMay 2018.

Ultimately, the Appellant appears, in June 2018, to have set about commencing a procedure under the Equal Status Acts.

The within complaint under the Employment Equality Acts, was received by the Workplace Relations Commission on 18^thJuly 2018.

The Appellant has submitted that his Trade Union had provided him with incorrect advice and that this caused delay in making the within complaint. The Court, as noted above, must rely only on the Appellant’s assertions in that regard.

The Court does note that the Appellant’s engagement with his Trade Union Official in these matters appears to have concluded in April 2018. The Appellant has made no submission as to the cause of any delay in making his complaint to the WRC between April 2018 and 12^thMay 2018. The Court also notes that the Appellant ultimately initiated procedures under the Equal Status Acts in June 2018 and only thereafter decided to initiate the within complaint under the Employment Equality Acts.

The Court concludes, taking the entirety of the Appellant’s submission into account, that the Appellant has failed to demonstrate reasonable cause for the delay in making his complaint to the WRC. In those circumstances, the Court cannot extend the time set out in the Act at Section 77(a) for the making of the within complaint and the appeal must fail

Determination

The Court determines that the Claimant has not established reasonable cause for the delay in presenting his 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
CO'R______________________
27 February 2020Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.