Complainant

Respondent

Anonymised Parties

Front office receptionist

Regional newspaper

Representatives

Conor Quinn Solicitor

John J Quinn & Co Solicitors

Kieran Kelly Solicitor

Flynn O'Driscoll

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00031223-001

01/10/2019

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

CA-00031223-002

01/10/2019

The Complainant's employment ended on 31 December 2018.

She lodged her complaints on 1 October 2019.

The Complainant brought an application to extend the time limits for her to make her complaint under Section 41(8) of Workplace Relations Act 2015. She submitted she had reasonable cause for the delay.

She had previously lodged a complaint under ADJ-00022086 against a different Respondent on the 10 June 2019.

The Complainant submitted that she had believed that her employer was the Respondent named in ADJ-00022086. It was only at the first hearing of that case that she was made aware of her employment by the Respondent named in this case. She submitted that she brought her complaint against this Respondent at the earliest possible opportunity.

The Complainant's case is that she commenced employment with the regional newspaper on 2 January 1997. At that time the newspaper was owned by a named individual.

Between that time and 2005 the newspaper was sold by a number of entities. In 2005 the Complainant was employed by a named limited liability company.

In April 2014 there was another change in ownership for the newspaper.

The Complainant worked 38 hours per week was in receipt of a gross salary of €583.00 per week.

She explained that she was never provided with a contract of employment nor a staff handbook.

She was not aware of the retirement policy. She turned 65 years of age on 6 November 2018.

She was not given an opportunity to appeal the Respondent's decision. She did write to the owner of the Respondent in 21 October 2018 but did not receive a reply.  She verbally begged the Managing Director to save her job. He was able to get a few extra weeks employment to postpone her termination of employment to the end of December 2018.

The Complainant was not entitled to the Statutory old-age pension until November 2019.

The Complainant identified in her complaint form that she was discriminated against by reason of her gender and her age. She also claimed that the Respondent victimised her. She said that the Respondent treated her unlawfully by discriminating against her in Conditions of Employment and for Dismissing her for discriminatory reasons. She claimed that the Respondent treated her unlawfully by discriminating against her in dismissing her because she opposed discrimination. She claimed that the most recent date of discrimination was 31 December 2018.

The Complainant gave examples of employees who worked beyond their 65th birthday, of a man who worked as a General Manager and worked into his mid-70s. She identified a photographer who worked until he was 72. She identified the man who worked in advertising until after his 65th birthday and a woman who worked as an advertising executive and she was over 65 years of age.  The Complainant could not recall one member of staff who was forced to retire on their 65th birthday. She submitted there was no custom and practice for doing so. 

The Complainant was of the belief that the Respondent forced her to retire so it would not have to pay her a redundancy payment.

She submitted that there was no justification for the Respondent's decision.

The Respondent objected to the Complainant's application to extend time to bring her complaint as it was outside of the 6 months’ time limit set out in the Workplace Relations Act 2015.

It submitted that it was in an unusual position as the Complainant was bringing a complaint against two Respondents claiming she was in employment by both. She was not applying to substitute one named Respondent for another.

The Respondent relied on an email sent to the Complainant and her colleagues in 2014 that named her employer as the Respondent and advised that it was being purchased by the company the Complainant brought ADJ-00022086 against.

The Complainant had this information since that time and several tax documents referring to the Respondent.

The Respondent was named as a trustee of the Complainant's pension in May 2017.

The Complainant had in her possession a number of legal documents which identified the correct name of her employer.

While the Respondent admitted there was an administration error in payroll and a number of payslips listed the incorrect name of the Complainant's employer, this was corrected in mid- 2018.

I have considered the evidence presented to me at the hearings and in submissions by both parties.

The import of “reasonable cause” as used in section 77(5) of the Employment Equality Act (and in other employment-related enactments) has been the subject of a lot of consideration by the WRC and the Labour Court.

In Salesforce.com v Alli Leech EDA1615 the Labour Court stated:

“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 DWT0338 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.

In that case, and in subsequent cases in which this question arose, the WRC and the Labour Court have adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

In Servier Ireland Industries Limited -v- Juanita Wilkinson EDA 1713, the Labour Court held

“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 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……..”

I have reviewed the facts and circumstances known by the Complainant in the first six months after the Complainant's dismissal from her employment.  She had in her possession information which identified the Respondent as her employer.  She had two P60’s naming the Respondent and pension documents. 

None of the evidence presented to me identified an objective reason why she did not bring her complaint against the Respondent within the required six-month time limit. 

Furthermore the Labour Court held in the case of SylwiaWach v Travelodge EDA1511 that: “… it appears to the Court that while there are some apparently divergent decisions on this subject, the preponderance of authority is that the Superior Courts will not add or substitute a party to proceedings where the limitation period in the action has expired as against that party.”. 

The Labour Court held that: “the court could not substitute the name of the employer as the time limit for the claim had expired. It was not appropriate to exercise a discretion to substitute a party to the proceedings where the limitation period had expired as against that party”.

Having regard to its established jurisprudence on reasonable cause, summarised above, I find in this case that the Complainant has failed to establish why she delayed in lodging her complaints against the Respondent. 

This complaint is not well founded.  The complaint was brought out of time.

Extension of time limit.