Complainant

Respondent

Anonymised Parties

Security officer

Security company

Representatives

  Self- represented

Julie Breen Julie Breen Solicitor

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-00038584-001

22/05/2020

The complainant submits that he was discriminatorily dismissed on the 4 November 2019, contrary to section 6(2)(g) of the Employment Equality Acts, 1998-2015

The complainant commenced employment with the respondent on the 23rd September 2019 on a 3-month fixed term contract as a Security Officer.

His hourly rate of €11.65 was paid on a four-weekly basis.

He submitted his complaint to the WRC on the 22 May 2020.

The respondent raised two jurisdictional issues.

1.The respondent submits that as the complainant has lodged his complaint outside of the time allowed to bring a complaint under the Employment Equality Acts 1998-2015, his complaint is statute barred. 

Concerning the scope for an extension of time for exceptional circumstances as provided for in section 77 (5) of the Acts, the respondent relies on the decision of Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425,where the  Court in considering the grounds for an extension of time held:

“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 respondent in response to the complainant’s plea for an extension of time on the basis of lack of knowledge of the correct procedures as per his letter dated 20th May 2020, refers to the numerous decision which have rejected this defence for failure to submit the complaint within the statutory time limits. The respondent cites

Galway & Roscommon ETB v Kenny (UDDJ624) where the Labour Court accepted that the delay in submitting the appeal was due to a miscalculation of when the 42 days to appeal started to run but was not satisfied it constituted exceptional circumstances as defined in s.44(4) of the 2015 Act.

And In Minister for Finance v CPSU and Ors [2007} 18 ELR 36, the High Court held that ignorance of one's legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.

The complainant’s defence of having consulted a solicitor who was unable to act for him and the further defence of an absence of printing facilities during ‘lockdown ‘to print a complaint form cannot be taken as “reasonable cause “for the delay, sufficient to extend the time to submit a complaint.

2. The original complaint was lodged under the Equal Status Act 2000 on 22 May 2020. By email dated the 16th August 2020, the complainant sought to change his complaint to a complaint ‘under equality’. The complainant again sought to further amend his claim by letter dated  9th October 2020 to include the grounds of discrimination as disability. The complaint again stated that he had sought legal advice. This amendment was not sought until some 11 months after the alleged discrimination.

The respondent relies on the Supreme Court decision in Co. Louth VEC –v-Equality Tribunal 2009 IEHC370 where it was held thatthe statutory claim (complaint form) had to be submitted within the statutory time limits in order to enable a consideration of any amendment to the complaint .

 The respondent reiterates that the adjudicator lacks jurisdiction to hear this complaint.

Complainant’s evidence.

The complainant sought an extension of time in accordance with the Acts.

The complainant was delayed in submitting the form within the statutory limits due to the fact that the solicitor he engaged was unable to represent him due to a conflict of interest. The complainant stated that he consulted two solicitors in April and May 2020.  The solicitor told him in either April or May that he would have to act quickly.  After May, he consulted the Irish Human Rights and Equality Commission. 

He was unaware of what was required in order to process a complaint of discrimination.

Furthermore, during lockdown commercial printing facilities enabling him to print a complaint form for referral to the WRC were unavailable.

He asks the adjudicator to accept his request for an extension of time based on reasonable cause

I have been asked to adjudicate on a complaint discrimination contrary to the disability provisions of the employment Equality Acts 1998-2015.

I must first decide on the preliminary issue in advance of any examination of the substantive complaint. The complainant has requested an extension of time in accordance with section 77(5)(b) of the Employment Equality Acts 1998-2015.

Relevant t Law

Section 77(5)(a) of the Acts provides: -

“(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”

The complainant dated the last act of discrimination as having occurred on the 4 November 2019. He submitted his complaint to the WRC on the 22 May 2020, eighteen days beyond the statutory limit within he must submit a complaint.

Section 77(5)(b) of the Acts allows for an extension of a further six months as follows:

“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.”

The adjudicator must adhere to the established authorities on what constitutes “reasonable cause”. The test for determining reasonable cause was formulated in Determination DWT0338 –Cementation Skanska and Carroll 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 court continued “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”.

The complainant has given an explanation for his delay. But I am also required to determine if these reasons justify the delay.

Lack of knowledge of procedures.

As has been stated in Galway & Roscommon ETB v Kenny (UDDJ624) and in Minister for Finance v CPSU and Ors [2007} 18 ELR 36 , lack of knowledge of the law and its requirements cannot be accepted a s justifiable reason  for the delay.

The complainant was advised in April or May that he would have to act quickly.

Impact of Covid 19 on availability of Printers.

I do not find that the unavailability of printers during lockdown prevented the complainant from making alternative arrangements or prevented him from making an online application.

The dismissal occurred in November 2019.The complainant was aware of facts which he believed gave rise to a cause of action from that date.

I am unable to accept that the reasons put forward by the complainant allow me to exercise discretion in his favour as provided for in section 77(5)(b) of the Acts. I do not find that the reasons offered justify the delay.

It is not therefore necessary to address the second jurisdictional point raised by the respondent.

I find that I do not have jurisdiction to adjudicate on the complaint of discrimination on the disability ground contrary to the Employment Equality Acts, 1998-2015.

I find that I do not have jurisdiction to hear this complaint. Therefore, I do not uphold this complaint of discrimination on the grounds of disability.

Time limits; lack of jurisdiction