Complainant

Respondent

Parties

Emanuela  Byrne

Aldi Stores (Ireland) Limited

Representatives

Self-Represented

Ms. Kiwana Ennis BL, instructed by Vincent & Beatty 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-00038979-001

31/07/2020

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

CA-00038985-001

31/07/2020

On 31st July 2020, the Complainant referred complaints under the Employment Equality Act and the Equal Status Act with the Commission. Herein, she alleged that that the Respondent discriminated against her on the grounds of “age” and “race”, and that they failed to permit access to training and employment. In particular, the Complainant alleged that the Respondent’s hiring practices had a disproportionally negative impact on people of particular nationalities and ages.

A hearing in relation to this matter was convened for, and finalised on, 6th January 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by wither side during the hearing.

At the outset of the hearing, the Respondent objected to the matter proceedings concurrently under the Equal Status Acts and the Employment Equality Acts. Following consideration of this application, the Complainant elected to pursue the complaint under the Employment Equality Act only. Thereafter, the Respondent raised two further preliminary applications, firstly that the matter was statute barred for the purposes of the Employment Equality Act and secondly that the Complainant had no locus standi to pursue the complaint in any event. These preliminary issues will be considered prior to the substantive complaint. The Respondent also denied the complaint on substantive grounds.

In circumstances whereby the Complainant referred her complaint to the Commission on 31st July 2020, the cognisant period for the purposes of the present complaint is 1st February 2020 to 31st July 2020. The Respondent submitted that the applications which constitute the subject matter of the complaint were made on 26th October 2019. In such circumstances, the Respondent submitted that the present complaint is out of time and should be dismissed.

The Respondent further disputed the Complainant’s application for an extension on the grounds of “reasonable cause”. In particular, the Respondent submitted that the Complainant could not demonstrate any particular reason that would have prevented her from referring the present complaint within the statutory timeframe.

By response, the Complaint applied to have the cognisant period for the purposes of the complaint extend to twelve months.

In support of this application, the Complainant stated that she had intended to submit the complaint within the relevant time-frame, however the last two months of the same, coincided with the implementation of the restrictions arising from the Covid-19 pandemic. As a consequence of the same, the Complainant was involved in the home-schooling of her child. The Complainant also stated that she was aware that the WRC were cancelling hearings at that time.

In answer to a question, the Complainant accepted that she did not attend work during the initial lockdown. When it was put to her that this would result in her having more time to pursue the complaint as opposed to less, the Complainant stated that she, and her dependents, were under significant pressure at the time.

Section 77 (5A) of the Acts provides that,

“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.”

Section 77(6A) provides that,

“discrimination or victimisation occurs—

(i)                  if the act constituting it extends over a period, at the end of the period”

The application of these provisions was extensively considered by the Labour Court in the matter of Ann Hurley -v- Co Cork VEC, EDA 1124. Here the Court stated that,

“Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant…Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum.”

This finding was approved by the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40. Here the Court held as follows:

“At the outset it is important to understand that both ss. 77(5)(a) and (6A) are intended to capture quite different circumstances. Subsection (6A) deals with situations where a single act occurs and where it continues to occur over a lengthy period, such as discrimination based on a regime, rule, practice or principle of an ongoing nature. A term in a contract is a good specific example of the provision’s more general meaning. In such a case the six-month period initiating the process will only start to run when the offending regime or practice ceases; or, put another way, the discriminatory act will be regarded for limitation purposes as having occurred only when such basis has ceased to exist.”

The present case involves the Complainant’s application for a role under criteria that existed at the relevant time. As the Complainant has alleged a single instance of discrimination, she cannot content a “continuum” of discrimination as provided for in subsection 5. Similarly, the Complainant’s allegations related to a application for employment that commenced on 26th October 2019 and finalised, for the Complainant’s purposes, shortly thereafter. Having regard to the same, the Complainant allegation does not relate to a “regime, rule, practice or principle of an ongoing nature” as provided for subsection 6.

Having regard to the same, the Complainant has submitted that the cognisant period for the purposes of the Act be extended so as render the complaint in time for the purposes of the Act. In this regard, Section 77 (5)(b) of the Acts provides 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.”

In the matter of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 the Labour Court described the test in respect of establishing “reasonable cause” as set out above 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 the present case, the Complainant has grounded her application for an extension on time under two headings; firstly, the difficulties and general anxieties regarding the restrictions arising from the Covid-19 pandemic, and secondly an understanding that the WRC had cancelled hearings during the same period.

Regarding the first issue, I accept that the restrictions arising from the Covid-19 pandemic constituted an exceptional event and the source of a great deal of anxiety for a great many people. Nonetheless, the Complainant’s evidence indicated that she was fully capable of lodging the present complaint during this period. In this regard, the Complainant did not open any medical evidence stating that she was in way incapable of the same. Furthermore, the complaint was belatedly referred during the period of heightening restrictions without any apparent difficulty on the Complainant’s part. In this regard, applying the findings in Cementation Skanska above, the Complainant’s explanation does not “explain the delay” in referring the complaint.

Regarding the second application, it is apparent that the Complainant was operating under the misapprehension that the work of this body was paused during this period. While some hearings were delayed as a result of the restrictions, this in no way operated to pause the statutory referral periods for complaints. In the matter of Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that,

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

Having regard to the foregoing, I find that the Complainant has not established “reasonable cause” as required by Section 77 (5)(b). In the circumstances, I find that no allegation of discrimination arises within the cognisant period for the purposes of the Act and consequently the Complainant’s application is not well-founded.

CA-00038979 Complaint under the Employment Equality Act

I find that no allegation of discrimination or victimisation arises within the cognisant period for the purposes of the Act and consequently the Complainant was not discriminated against.

CA-00038985 Complaint under the Employment Equality Act

This complaint was not pursued by the Complainant at the hearing and consequently I find that the Respondent did not engage in prohibited conduct.

Extension of Time, Pandemic, Restrictions