ADJ-00018665

Complainant

Respondent

Anonymised Parties

An Advisor

An Advisory Body

Representatives

Richard Grogan & Associates

Tiernan Lowey B.L instructed by Fitzgerald Solicitors

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-00023874-001

07/12/2018

The complainant had been employed by the respondent from January 1999 until her employment terminated on June 4th 2018. There were two cases listed for hearing. It was agreed to proceed with this one (with a minor amendment to the respondent name) and to withdraw ADJ 20650. The complaint was received by the WRC on December 7th 2018, some four days outside the six month period specified in the legislation for the submission of complaints. This was addressed as a preliminary issue. A full hearing took place on the substantive complaint on the basis that if the complainant’s application for an extension were upheld a decision would issue on the substantive complaint, and if not, then the complaint could not proceed because it was not within jurisdiction.

The complainant offered a number of explanations for her failure to submit the complaint within the six months required. The first was the failure on the part of the WRC to offer an advisory service to the complainant. The second was the fact that there was no provision for legal aid as required by the Charter on Fundamental Rights of the European Union. Finally, the complainant says that the period of ‘six months’ is not precisely defined. The Act could have stated the requirement in terms of weeks but did not do so, and that a period of ‘six months’ could run beyond six calendar months; for example to the end of the sixth month commencing with the month in which the alleged breach took place, but not running from the day in question.

The respondent submits that the delay was a clear four days late and notes that the complainant had been legally advised in respect of the matter at an early stage, (in relation to a related case under the Unfair Dismissals Act)and certainly in sufficient time to have been made aware of the time limit requirements, and to have acted on them. The respondent submitted a number of authorities, all of which followed the Cementation Skanska line of authority in respect of late submission and submitted that these apply in the current case.

The test to be applied in extension of time applications under the Acts, is that formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v CarrolDetermination DWT 0338 and in other cases. “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.” Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows: “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the   delay ceased to operate before the complaint was presented, that may undermine a    claim that those factors were the actual cause of the delay.  Finally, while the established test imposes a relatively low threshold of reasonableness on an   applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.” In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said in Department of Finance v IMPACT. [2005] E.L.R. 6. that it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued: “The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time. While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.” By reference to these criteria; in summary, the ‘explain and excuse’ test the grounds advanced by the complainant look very flimsy indeed, and somewhat fanciful. The first related to the failure on the part of the WRC to offer an advisory service to the complainant. There is no obligation on the WRC to provide advice to parties, other than in relation to the procedure for making complaints and the conduct of hearings, but not in respect of the merits of a complaint, or the desirability of proceeding. In any event, the complainant was the beneficiary of solicitor’s advice (not the solicitor representing her in this case) in relation to her earlier complaint and there is no basis for asserting that she was at any loss in that respect, and in any case, there is no basis for it. The second was the fact that there was no provision for legal aid as required by the Charter on Fundamental Rights of the European Union. Again, this is not an impediment to a case proceeding at the WRC, and specifically does not explain why the case could not have been submitted within the time limits. Any person may submit a complaint without benefit of legal advice (and many do) and there is considerable latitude permitted in respect of further submissions. Finally, the complainant says that the period of ‘six months’ is not precisely defined. The Act could have stated the requirement in terms of weeks but did not do so. I propose to give the term ‘six months’ its ordinary meaning in the practice and procedure of the WRC and treat it as six calendar months from the date of the alleged breach in line with that normal practice. I cited above the dicta of the Court regarding the need to be ‘satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd….. to be decided by applying common sense and normally accepted standards of reasonableness.’ Suffice to say that none of the grounds advanced by the complainant survive the application of the test of ‘common sense and normally accepted standards of reasonableness’ and I conclude therefore that none of the grounds advanced by the complainant meet the legal tests to fall within the ‘reasonable cause’ exception. These were described by counsel for the respondent as ‘novel’, but novelty, of itself will not meet the legal test and does not do so here. Therefore, her complaint has not been made within the statutory time limits and is not within jurisdiction.

For the reasons set out above Complaint CA-00023874 is not made within the statutory time limits and is not well founded.

Time Limits