Complainant

Respondent

Parties

Michail  Michailidis

Luxor Leisure Ltd Radisson Blu Royal Hotel

Representatives

Lisa Conroy Peninsula Group Limited

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-00042623-001

21/02/2021

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

CA-00042624-001

21/02/2021

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

CA-00042625-001

21/02/2021

The complainant was employed by the respondent from 24/08/2019 to 20/03/2020.  He was dismissed on 20/03/2020 as the hotel had so scale its operations as result of the restrictions imposed due to COVID-19.  He was paid €10.30 per hour.  The complainant submitted three complaints to the Workplace Relations Commission (WRC) on 21/02/2021 alleging discrimination.  The respondent denies those complaints.

The complainant provided a comprehensive submission and supporting documentation in advance of the hearing.  The respondent provided a written submission on the morning of the hearing and having heard the respondent’s explanation for the late submission I deemed this to be reasonable in the circumstances and accepted the submission.  The complainant expressed his concern at the late submission, and as the complainant was not represented, I adjourned the hearing for a period of time to allow him a reasonable opportunity to read and review this submission.  The complainant was advised that he would be facilitated with a further opportunity to adjourn if he requested this.

At the end of the hearing the complainant was given a further opportunity to provide any further evidence that he may have prepared.  He confirmed that he was satisfied with the hearing and that he was given sufficient opportunities to present his case.

The respondent’s representative also confirmed that they were satisfied that the hearing allowed them sufficient opportunity to present their case and respond to the complainant’s submissions.

The respondent raised three preliminary points in relation to this case.  Firstly, the complainant was dismissed from his employment on 20/03/2020 and he lodged his complaint with the WRC on 21/02/2021.  Section 77(5) of the Employment Equality Act states:

“(5) 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates”.

 It was submitted on behalf of the respondent that the relevant period for this complaint to be lodged is between 20/03/2020 and 20/09/2020.  In that context the respondent relies on the case of Cementation Skanska v Carroll, DWT0338 in which the Court articulated the test which pertains to time limits as follows:

“it is the Court’s view that in considering if reasonable cause exists, it is for the Appellant 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 Appellant at the material time.  The Appellant’s failure to present the claim within the six-month time limit much 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 Appellant 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 respondent’s representative also opened the case of O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J held that the test is an objective one and pointed out that 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.

The respondent also relied on the Labour Court case of A Company v A Worker UD/18/220 UDD22323 in which it was held that:

“The Court cannot ignore the fact that in the instant case, the Complainant was in a position to pursue claims regarding his social welfare entitlements and to pursue personal injuries claim in the 6 months’ period subsequent to this dismissal.  This does not suggest that the Complainant was incapable of making a complaint of unfair dismissal under the Act within that timeframe.  The Court does not doubt the Complainant’s health difficulties or the fact that he found his dismissal to be traumatic.  However, he was clearly capable of dealing with other matters in that period.  Therefore, in establishing reasonable cause for the delay in lodging a complaint under the Act, it is necessary for him to show that there was some factor which prevented him from submitting such a complaint while he was capable of making other claims to other bodies, to fill out relevant online forms and to engage in correspondence regarding those matters.  He has not been able to do so to the satisfaction of the Court.  Accordingly, the Court concludes that the complaint was submitted outside the prescribed time limits without reasonable cause and the Court does not have jurisdiction to hear the appeal”.

The respondent submitted that the complainant made complaints to the Health and Safety Authority (HAS), the Gardaí and also attempted to lodge a complaint to the Personal Injuries Assessment Board (PIAB) by completing an application in the time following his dismissal.  It is the respondent’s position that the complainant was fully capable and successful in making these other applications and there was no reason put forward to explain why he was not able to submit a complaint to the Workplace Relations Commission (WRTC).  The respondent also opened the case of Shauna Cox v ToyTown Toys Ltd (ADJ-00026610) where it was accepted that the complainant in that case was treated for a medical condition but there was not a causal link between the complainant’s condition and the delay in lodging a complaint to the WRC on time.  The Adjudication Officer noted:  “I therefore, find that the complainant’s explanation for not referring her complaint until some seven months after the date of her dismissal does not satisfy the test of reasonable cause as it has been interpreted and applied by the WRC and the Labour Court”.

The Labour Court in determination DWT0338.4 established the test for deciding if an extension of time should be granted for reasonable cause:

“Where and Adjudication Officer decides to consider a request for extension of time the onus is on the complainant to satisfy the Adjudicator:

i.                      Firstly, that the reason(s) relied upon both explain the delay and provide a justifiable excuse for same;

ii.                   Secondly, that a causal connection exists between the reason proffered and the failure to apply in time;

iii.                 Thirdly, that as a matter of probability, the complaint would have been presented in time but for the intervention of the factor(s) proposed as having directly caused delay in lodgement of complaint”.

The respondent also submitted a second preliminary issue in that the complainant is seeking to have the same complaint adjudicated on three times.  He has alleged that he has been discriminated against on the basis of his race and submitted a duplicated complaint stating that he was penalised for taking an action set out in the Employment Equality Acts.  The complainant had set out the date of the incident for both complaints as 20/03/2020.

The respondent also raised a third preliminary point stating that the law requires the complainant to establish a prima facia case of discrimination before the burden of proof shifts to the respondent.  Section 85A(1) of the 2004 Act states:  “Where in any proceedings facts are established on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, t is for the respondent to prove the contrary”.  The respondent submits that the Labour Court decision of Melbury Developments v Arthur Velpeters (EDA0917) the Court clearly set out that “section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits no exceptions to that evidential rule”.  In this instant case the complainant has alleged that the most recent date of discrimination was 20/03/2020 but the complainant has failed to make a link between his dismissal and his race.

The complainant has also failed or refused to identify a comparator, whether actual or hypothetical as required by the legislation with respect to the alleged discrimination.

The complainant submitted three complaints to the WRC on 21/02/2021 alleging penalisation and discrimination under the provisions of the Employment Equality Act.  The complainant provided a written statement to assist him in formulating the facts in relation to his complaints.  These complaints arose from an incident on 9/10/2019 involving the complainant and a supervisor.  Following this incident, the complainant was on sick leave.  On 20/03/2020 the complainant was advised that his employment was being terminated due to the COVID-19 pandemic.  The complainant submits that he was dismissed because he reported the incident on 9/10/2019 to the Gardaí and the Health and Safety Authority (HAS).

In relation to the preliminary issue in relation to the time limits the complainant believes that he should be facilitated with a 12-month extension due to the COVID-19 pandemic and the difficulties which arose from this.  The complainant gave evidence that the pandemic prevented him for taking legal advice and this resulted in the delay.  The complainant submitted that the respondent could not argue on the one hand that he was dismissed due to the exceptional situation that arose due to COVID-19 and then to argue that his delay in submitting his complaints due to the COVID-19 was not also exceptional.

The complainant submitted that “due to the seriousness of the circumstances, given the fact that my human, constitutional rights were constantly and grossly violated” he should be given an extension of time.  The complainant also submitted that the entire matter has had “negative and life lasting consequences for me, for my health” it was important for him to have his complaints heard.

It is the complainant’s position that the case law submitted by the respondent are not relevant and should be disregarded.  These relate to the unique circumstances of those cases and not to his.

 The complainant in this case has referred three matters for adjudication as provided for in Section 77 of the Employment Equality Act, 1998.  In particular the complainant set out in his Workplace Relations Forms dated 21/02/2020 that he is seeking redress from the respondent in circumstances where he claims his employer behaved unlawfully and discriminated against him in the course of his employment.  He specifically states that he was discriminated against on the grounds of his race and that he was penalised and dismissed for making a complaint.

The respondent raised a preliminary issue in relation to the jurisdiction of the WRC to hear this complaint as it is out of time. 

The first issue to be determined is if the Workplace Relations Commission has jurisdiction to hear these complaints.  The factual matrix is as follows:

Date of alleged incident: 09/10/2019

Date of dismissal: 20/03/2020

Date complaints submitted to WRC: 21/02/2021.

Section 77(5) of the Employment Equality Act, 1998 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. 

(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 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 complaints of discrimination and victimisation were referred to the Director General of the WRC on 21/02/2020 stating that the most recent date of discrimination was 20/03/2020.  This is a period of ten months (equivalent to 43 weeks and 6 days).  This is clearly outside the six-month period within which the complainant should have submitted his complaints.  

The complainant has submitted that the reason for the delay in submitting these complaints was because he was not able to obtain legal advice due to the restrictions then in place due to the COVID-19 pandemic.   This does not stand up to scrutiny and the WRC continued operate and accept complaints using the on-line system.  The complainant submitted his complaints on 21/02/2021 without legal representation and he has not provided any rationale why he was unable to do this within the six-month time line.  I also note that the complainant confirmed in evidence that he made complaints to the Gardaí and HSA in relation to this matter within a short period of time.  The explanation provided by the complainant is not sufficient to explain the delay and to provide a justifiable excuse for this delay.

In these circumstances I find that I do not have jurisdiction to hear these complaints as they were submitted outside the statutory timeframe.  I decide that the late submission of these complaints was not prevented due to a reasonable cause.

I find that I do not have jurisdiction to hear these complaints as they were submitted outside the statutory timeframe.  I decide that the late submission of these complaints was not prevented due to a reasonable cause.

Out of time