Complainant

Respondent

Parties

Mark  Smyth

Department Of Social Protection

Representatives

  Self Represented

Andrew Whelan BL Instructed by Jennifer Murray State 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-00038437-001

30/06/2020

The Complainant alleged he was discriminated against on the basis of the Respondent not finding some reasonable accommodations for his Learning Disability, particularly to do with providing his own office space for noise reduction, unreasonable work assignments and the provision of a four-day week. The Respondent denied the claim and submitted a comprehensive and detailed submission detailing the extensive level of reasonable accommodations it had provided for the Complainant. The Complainant was employed as an Executive Officer from March 3rd, 2019 to January 3rd, 2020 when he resigned his employment. The last date stated by the Complainant that the Respondent allegedly infringed the Act was September 3rd, 2019. The Complainant submitted his claim under the Equality Act to the WRC on June 30th, 2020. At the Hearing and in the Respondent advance submissions which were copied to the Complainant, the Respondent submitted that as a preliminary argument that the complaint was out of time in accordance with Section 77 of the Act and the Adjudicator had no jurisdiction to hear the claim. This issue was put to the Complainant for a response at the Hearing and then the substance of the claim and the submissions of both Parties was heard by the Adjudicator.  The Parties were advised that the Adjudicator would make a decision on the preliminary out of time issue first in this Decision and pending that decision would either deal with the substantive issues or decline jurisdiction because the claim was out of time.

The Complainant’s claim was submitted outside the prescribed period under the Act.  The Respondent submitted that the Complainant had not demonstrated any reasonable cause for this delay and as a result the Complainant’s claim should be dismissed.  

Section 77(5) of the Employment Equality Acts, 1998 - 2015 (“the  Act”) provides that an Adjudication Officer shall not entertain a complaint if it has been presented after the expiration of six months beginning on the date of the contravention to which the complaint relates. Section 77(5)(a) states “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 Respondent submitted that prima facie, the Complainant’s complaint contravenes the forgoing provision of the Act.  Section 77(5)(b) of the Act permits an Adjudication Officer to extend time by a maximum of further six months if they are satisfied that reasonable cause was present that prevented a complainant from presenting their case.  Section 77(5)(b) states that “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 established test of “Reasonable Cause” was set out in CementationSkanska (Formerly Kvaerner Cementation) v CarrollDetermination WTC0338. 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.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.”

The test formulated in CementationSkanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. stated as follows “The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The issue of Reasonable Cause has been considered in a number of Labour Court cases and the onus is on the Complaint to satisfy the Adjudicating Body of the grounds for Reasonable Cause. In DWT209 the Labour Court concluded as follows “The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Complainant’s last date in work was 11thJuly 2017. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place. As the Complainant’s claim was not presented to the Workplace Relations Commission until 10thMay 2018, it was outside of the statutory time limit. It was the Complainant’s submission that the unfortunate sequence of events that befell him prevented him from lodging his claim in time. However, by his own submission those unfortunate events ended when he returned to Australia in January 2018, yet he waited a further four months before he lodged his claim. The Court finds that the reason proffered by the Complainant does not explain the delay, nor does it afford an excuse for the delay. For all the reasons set out above, the Court finds that the complaint under the Act is outside the statutory time limits and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter.”

In UDD213 where the issue of an Application for an extension of time was considered the Labour Court noted in refusing the application that “Furthermore, the Court notes that no evidence of the representative’s absence or the dates of such absence have been furnished to the Court.” This is somewhat similar to this case where no documentary evidence was provided by the Complainant to justify his request for an extension for Reasonable Cause.

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 failure to present the complaint in time. Thirdly, the Adjudicator 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 complaint 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 ILRM30, quoted above, 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 the instant case, the statutory six-month period had elapsed and the Complainant was on notice prior to the Hearing, by the Respondents submission, that the complaint was outside the statutory six-month time period. The Complainant did not make any pre-Hearing submission on this issue. At the Hearing the Complainant was appraised on the legal situation that his claim was out of time and the Respondents objections to an extension of time. The Complainant advised that he had consulted a solicitor within the allowed time frame but was not informed of the legal time frames set out in the Act. He also, in both his submission and in evidence, stated he was pursuing easier/other options to find a new role and he did not want to revisit his situation and wanted to put this energy into applying for other roles.

The Respondent argued that the request for an extension of time did not comply with the Labour Court ruling in Cementation Skanska v Carroll (DWT0338) where the Court determined that it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay and the Complainant must show that had those circumstances not been present they would have initiated the complaint in time.  The Respondent argued that no reasonable reasons were put forward by the Complainant to show why the Complainant did not initiate the complaint in time.

Having considered all of the facts of this case I find that while there were verbal reasons offered by the Complainant for the delay they do not justify the delay nor was there any supporting documentary evidence provided to justify an extension of time. The Complainant had the benefit of seeking legal advice, by their own admission, during the required six-month time limit and it would be very surprising if the Complainant was not advised of the statutory time frames by a Solicitor. No written proof was offered by the Complainant that he was not advised of the time frames involved. The Respondent argued that the consultation with the professional Solicitor prior to the six-month statutory time allowed showed the Complainant had the benefit of professional advice and he choose not to act on it. The Complainants version of events that he consulted with a knowledgeable Solicitor who did not advise him of the six-month statutory timeframe and the process of applying to the WRC is not sufficient to justify reasonable cause, without evidence.  I prefer the evidence of the Respondent that the Complainant had the benefit of the expert legal advice and there was therefore no justifiable cause for the delay in submitting the complaint within the allowed six-month timeframe. None of the other reasons put forward by the Complainant for the delay in submitting his claim meet the Reasonable Cause Test. Accordingly, the Adjudicator finds there is no Reasonable Cause to extend the time limit of six months to twelve months and the complaint must fail in these circumstances.  As a result. I find that the claim is out time of time and I cannot proceed to investigate and decide upon the substantive matter.

Discrimination