ADJ-00019839

Complainant

Respondent

Parties

Anne Clarke

Cari's Closet Limited

Representatives

David Boughton B.L. instructed by Catherine Fee & Co. Solicitors

J. T. Flynn & Co. Solictors

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-00025455-001

31/01/2019

The complainant was employed by the respondent as an Office Manager from 17th December 2017 until 23rd July 2018. The complaint was submitted to the Workplace Relations Commission (WRC) on 31st January 2019 and relates to alleged discrimination on the grounds of Gender and Disability. The complainant also contends that she was dismissed for discriminatory reasons.

Naming of the parties

The parties to this complaint are being named in this decision as is the practice of the WRC.

As the complaint was referred to the WRC approximately nine days outside of the statutory six-month time limit, the complainant’s representative sought an extension of time by letter dated 7th February 2019. In its application seeking an extension of time, the complainant’s representative outlined that between January and March 2018, the complainant was in the early stages of a high risk pregnancy and that the respondent was aware of the situation. The complainant was subsequently in receipt of Maternity Benefit from July 2018 until January 2019 and having given birth on 21st October 2018, experienced a number of health issues. The complainant’s representative outlined that the complainant was focussing on her own health during the final months of her pregnancy and on both her own health and the health of her new born baby from October 2018 onwards. The complainant’s representative stated that the respondent is not prejudiced in any way by the short delay in the referral of the complaint.

The complainant’s representative cited the cases of Salesforce.com v Ali Leech EDA 16/15 and AÍne Murray v University Hospital Limerick (ADJ12306) in support of its position that it has met the test for establishing reasonable cause for the delay in submitting the complaint and is seeking that an extension of time be granted.

The respondent does not accept that the complainant should be granted an extension of time. The respondent contends that the complaint should fail as it is out of time.

The complaint’s employment ended on 23rd July 2018. The complaint was submitted to the WRC on 31st January 2019. The complainant’s representative sought an extension of time in relation to the complaint. On this issue I find as follows:

Time Limits

Section 77(5) of the Employment Equality Act, 1998 states as follows:

(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.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

Reasonable cause

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states 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 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”.

I note that the complainant sought legal advice on this issue in late November 2018 and Counsel’s advice was sought in December 2018. When the complainant had the benefit of legal advice, her complaints were within time. At that point, the complainant could have referred the complaint to the WRC, or it could have been submitted on her behalf. While the reasons put forward explain the delay in submitting the complaint, they do not, in my view, offer an excuse for the delay. On that basis, I find that the complainant has not satisfied the reasonable cause test as set out in Cementations Skanska v Carroll for the late referral of the complaint. Accordingly, I do not grant the extension of time sought.

Having considered the submissions of both parties, I find that the complaint is out of time and is therefore statute barred.

Discrimination, complaint out of time, reasonable cause, Cementation Skanska v Carroll