Complainant

Respondent

Anonymised Parties

A Supervisor

A Community Employment Scheme

Representatives

Forsa

Burns Nowlan Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00033626-001

09/01/2020

The Respondent is a not for profit organisation and operates a community employment scheme which is funded by a Government Department. The Complainant was employed by the Respondent as a Supervisor from 30 December, 2002 until 10 April, 2019 when his employment was terminated. The Complainant claims that his employment was terminated on the grounds of his age after reaching the age of 66 years. The Complainant contends that the Respondent did not have a compulsory retirement age for employees upon reaching the age of 66 years and that his contract of employment did not contain any clause to indicate that he would be obliged to retire upon reaching this age. The Complainant claims that his dismissal upon reaching the age of 66 years amounts to a discriminatory dismissal on the grounds of age contrary to Section 8(6) of the Employment Equality Acts.

The Respondent disputes the claim of discriminatory dismissal and contends that the Complainant’s employment was terminated as a result of the cessation of funding for his position from the relevant Government Department. The Respondent contends that the Complainant’s position was wholly funded by the Department and that the company did not have sufficient finances to retain him in employment after this funding was ceased in April, 2019. The Respondent disputes that the termination of the Complainant’s employment was in any way connected to the fact of his age or that it amounts to a discriminatory dismissal contrary to the Employment Equality Acts.

Preliminary Issue – Time Limits and Application for Extension of Time

The Respondent disputes the Complainant’s claim that he was discriminatorily dismissed on the grounds of age contrary to Section 8(6) of the Employment Equality Acts.

The Respondent, without prejudice to the foregoing, also submits that the Director General of the WRC does not have jurisdiction to inquire into this complaint on the basis that the Complainant has failed to refer the complaint to the WRC within the six-month time limit provided for in Section 77(5)(a) of the Employment Equality Acts.

The Respondent submits that the Complainant has indicated on his Complaint Referral Form that the date of the most recent occurrence of discrimination was 10 April, 2019 (i.e. the date of termination of his employment) and that the complaint was referred to the WRC on 9 January, 2020. The Respondent submits, therefore, that the complaint was not referred to the WRC within the proscribed six-month statutory time limit.

The Respondent also submits that the Complainant has failed to establish that his failure to refer the instant complaint to the Director General within the required time limit was due to reasonable case, and therefore, he cannot avail of an extension to the time limit under the provisions of Section 77(5)(b) of the Employment Equality Acts.

Preliminary Issue – Time Limits and Application for Extension of Time

The Complainant does not dispute that the instant complaint was not referred to the Director General within the six-month time limited provided for in Section 77(5)(a) of the Employment Equality Acts. However, the Complainant, contends that his failure to submit the complaint within the applicable period of six months occurred as a result of the ill-health that he suffered following the termination of his employment on 10 April, 2019.

The Complainant claims that he experienced multiple health issues following his dismissal which required medical intervention and resulted in his hospitalisation for a period. The Complainant contends that he was required to undergo a lengthy period of recovery following his hospitalisation which required the prioritisation of his health, and therefore, was not in a position to attend to matters arising from his dismissal during this period.

The Complainant stated that he approached a solicitor in May/June, 2019 to obtain advice about getting assistance in relation to asserting his rights arising from his dismissal. The Complainant stated that he subsequently contacted his Trade Union representative in December, 2019 and following which arrangements were put in place to refer the instant complaint to the WRC.

The Complainant submits that he has established that the failure to refer the complaint to the WRC within the six-month statutory time limit was due to reasonable cause, and therefore, the relevant time period should be extended to twelve months in accordance with the provisions of Section 77(5)(b) of the Acts.

Preliminary Issue – Time Limits and Application for Extension of Time

The Respondent raised a preliminary objection in relation to the jurisdiction of the Director General of the WRC to investigate the claim of discrimination in the instant complaint on the grounds that it does not comply with the relevant time limits provided for in Section 77(5) of the Acts.

Section 77(5) of the Employment Equality Acts makes provision for the relevant time limits for referral of complaints by a person who intends to seek redress under the Acts in relation to an alleged incident(s) of prohibited conduct. Section 77(5) of the Acts provides as follows:

“(a) Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(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 substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

The effect of these provisions is that the Complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the claim was received by the Director General. This period can be extended to twelve months in accordance with the provisions of Section 77(5)(b) of the Acts in circumstances where the Complainant can demonstrate that there was “reasonable cause” which prevented him from referring the complaint within the prescribed time limits.

In considering this issue, I note that it was not in dispute between the parties that the date of the most recent alleged occurrence of discrimination was 10 April, 2019 (i.e. the date of termination of the Complainant’s employment). Therefore, the cognisable period for the purpose of the instant complaint is the six-month period prior to the date on which the claim was received by the Director General, namely 10 April, 2019 to 9 October, 2019. The Complainant referred the complaint to the Director General on 9 January, 2020 which was more than six months after the most recent occurrence of the alleged act of discrimination.

The Complainant did not dispute that the instant complaint was not referred within the prescribed time limits and made an application for an extension of the relevant time limits in accordance with the provisions of Section 77(5)(b) of the Employment Equality Acts.

The Complainant contends that his failure to refer the complaint within the applicable period of six months occurred as a result of the ill-health that he suffered following the termination of his employment on 10 April, 2019. The Complainant further contends that he experienced multiple health issues following his dismissal which required medical intervention and resulted in his hospitalisation for a period. The Complainant contends that he was required to undergo a lengthy period of recovery following his hospitalisation which required the prioritisation of his health, and therefore, was unable to attend to matters arising from his dismissal during this period.

The Respondent submits that the Complainant has failed to establish that his failure to refer the complaint to the Director General of the WRC within the prescribed time limits was due to reasonable cause. The Respondent disputes that the Complainant’s medical condition impaired his ability to refer a complaint within these time limits. In this regard, the Respondent submits that the Complainant was medically fit to engage with the company in relation to his employment and legal rights/entitlements during the immediate period following his dismissal. The Respondent also submits that the Complainant was in a position to obtain legal advice during the six-month period following the termination of his employment and therefore should have been in a position to refer the complaint within the statutory six-month period.

Given that the instant complaint was not referred to the Director General of the WRC until 9 January, 2020, it was therefore clearly outside of the six-month time limit but within the period of twelve months. In the circumstances, I will therefore proceed to examine the Complainant’s application for an extension of the time limit in accordance with the provisions of Section 77(5)(b) of the Acts.

The established test for deciding if an extension should be granted for reasonable cause shown is that enunciated by the Labour Court in the case of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. The Labour Court set out the test 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.”

It is a matter for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay.

The reason put forward by the Complainant in support of his application for an extension of time is based on a claim that he was medically unfit to attend to his affairs during the material period in question. However, I note from the evidence adduced that in the same period the Complainant was able to seek legal advice from a solicitor in relation to this matter and that he also engaged with the Respondent in relation to the circumstances surrounding the termination of his employment. I am satisfied that the Complainant has not provided any plausible explanation to explain the circumstances which allowed him the engage with his solicitor and the Respondent during the period in question in relation to the assertion of his employment rights but prevented him from instituting proceedings in respect of this complaint. In the circumstances, I find that these actions undermine the Complainant’s claim concerning his medical capacity to refer a claim under the Act during the material period in question.

I also find that the Complainant has failed to provide any compelling or convincing medical evidence to support his assertion that the failure to refer the instant complaint to the Director General during the material period in question was attributable to his ill-health. The only medical evidence which was adduced by the Complainant was a certificate from his GP dated 24 February, 2020 which stated that the Complainant “has had multiple medical issues over the past year including cardiac issue and stress”. However, I note that this medical certificate was obtained several months after the statutory time limit had expired and the Complainant’s GP did not attend the hearing to provide evidence in relation to his medical condition during the material period in question. I am satisfied that this medical certificate does not provide any information to confirm that the Complainant’s ill-health prevented him from referring the complaint within the statutory time limit.

Having regard to the totality of the evidence the submissions of both parties, I am satisfied that I have not been presented with any compelling reasons from which I could reasonably conclude that the Complainant was incapable due to his stated medical condition from referring this claim within the statutory time limit. In the circumstances, I find that the Complainant has failed to establish, as a matter of probability, that he would have referred the complaint within the requisite statutory timeframe were it not for the intervention of the factors which he has relied upon as constituting reasonable cause. Therefore, I find that the Complainant has failed to comply with the relevant time limits provided for in Section 77(5) of the Employment Equality Acts. Accordingly, I do not have jurisdiction to inquire into the complaint.

I find that the Complainant has failed to comply with the relevant time limits provided for in Section 77(5) of the Employment Equality Acts. Accordingly, I do not have jurisdiction to inquire into the complaint.

Employment Equality Acts, 1998 – 2015 – Discrimination – Section 8(6) – Discriminatory Dismissal – Age Ground – Section 77(5) – Time Limits – Reasonable Cause – No Jurisdiction