Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Public Body

Representatives

Michelle Ní Longáin Byrne Wallace Solicitors

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-00046789-001

21/10/2021

The Complainant commenced employment as a Clerical Officer, with the Respondent on 13 January 2020. The Complainant’s employment ended on 8 January 2021. The Complainant submitted a complaint under the Employment Equality Acts 1998-2015, which was received by the WRC on 21 October 2021.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, that testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for. The required Affirmation / Oath was administered to all witnesses. The legal perils of committing Perjury were explained to all parties. Full cross examination of witnesses was allowed.

Due to the sensitivities of the case I have decided to anonymise the parties.

The Respondent submits that the Complaint is statute barred as the Complainant has failed to lodge their complaint within the time limit outlined under section 77(5) of the Acts. In making this argument the Respondent refers to several cases; the Labour Court in the matter of Ann Hurley v Co Cork VEC, EDA 1124, the Supreme Court in the matter of County Louth VEC v Equality Tribunal [2016] IESC 40] and the Labour Court in Occipital Limited v Joseph Hayes EDA 184.

The Respondent submits that the above case law indicates that only if it is held that a discriminatory act or acts extended over a period, should the claimed breach of the requirement to provide reasonable accommodation be considered from the Termination Date.  This is not conceded by the Respondent.  Otherwise, the time runs from the date of each alleged discriminatory act, which can be no later than the Termination Date, as that was the last date of the employment relationship, which is the case in the present circumstances.

The Respondent submits that it appears from the details provided in the complaint form, that the Complainant may allege discriminatory acts beyond the twelve-month period.  The Respondent disputes any assertion that acts extended over a period so that time should run from the last alleged act, and the Respondent submits that the WRC does not have jurisdiction to consider this complaint. 

The Respondent submits that the Complainant was on annual leave from 22 December 2020 until Termination Date but that even if a discriminatory act occurred on 8 January 2021 (which the Respondent does not accept) this is nine and a half months before the complaint form was lodged with the WRC on 21 October 2021, and as such was clearly lodged outside the six-month time limit prescribed under the Acts. In this instance, the Respondent submits that the Complainant has failed to demonstrate reasonable cause to extend the limitation period to 12 months.  The Respondent refers to the Labour Court determination, Cementation Skanska v Carroll DWT0338, to support this contention.

The Respondent does not accept any of the reasons given by the Complainant in a written response to the WRC explaining the delay in submitting their complaint as being such as to fall within the definition of reasonable cause to explain the delay nor do they satisfy any of the requirements set out in the Cementation Shanska decision.

The Respondent submits that the complaint is statute barred and that the Complainant has failed to demonstrate reasonable cause that would permit the WRC to extend the statutory time limit.  Accordingly, the WRC does not have jurisdiction to hear this complaint.

The Complainant submitted a number of reasons why their complaint had not been made earlier than it had:

1. They had been on probation in a new employment and they were afraid that making a complaint to the WRC regarding a previous employer might impact on their chances of keeping their job with their new employer.

2. That they suffer from anxiety, and they were not in a strong enough place to make a complaint to the WRC.

3. That they had been in touch with the CEO of the Respondent organisation and their response, amounted to “victim blaming” and this person disputed the facts that reflected the treatment the Complainant had received when working with the Respondent.

4 To highlight the lack of supports available to people with a disability hoping to gain employment in public organisations.

5. That she had contacted the WRC and had spoken with a staff member and had asked for advice on what they could do regarding the issue. The staff member advised the Complainant to go ahead and complete the complaint form.

The Complainant’s Representative stated that there was no issue with the dates as stated on the complaint form. Re-iterating some of the points made above, the Representative stated that the Complainant had been living in Dublin after she had left the Respondent organisation and was trying to hold down a new job; she did not want to draw attention to herself in that scenario.

The Representative pointed out that the pandemic was at its height around this time and with the accompanying restrictions on travel the Complainant could not get home.   The Complainant needed assistance with filling the complaint form and because there were vulnerable people living at home, the Complainant could not go home and therefore could not get the assistance she needed to fill in the form. 

The Representative stated that the Complainant was “thinking about” filling in the form and that in July or August they had a consultation with a Human Resources expert.  When asked why the Complainant had not submitted a complaint form around the time they met with the HR expert, the Representative stated that the Complainant wanted to gather facts.  When asked whether the HR expert could have helped with filling in the complaint form, the Representative stated that they had not asked the HR expert about doing this. `

Section 77(5) of the Employment Equality Acts states:

(5) (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.

Section 77(6A) states:

(6A) For the purposes of this section—

(a) discrimination or victimisation occurs—

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

In this case the Termination Date is 8 January 2021, and in the normal course of events, the six-month limitation period is assessed from that date. That being the case a complaint received by the WRC on 21 October 2021, does not bring the claim within the limitation period provided in section 77 of the Acts.

The required test to extend time to permit a claim of more than 6 months is that of  “reasonable cause”.

In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” 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.”

 Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

 “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 or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint   would have been presented the complaint 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    claim 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 O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, 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.”

Having considered the matter carefully, I find insufficient evidence has been adduced to give reason why the Complainant show reasonable cause for the delay in submitting the complaint.

The Complainant failed to adduce evidence relating to the period between the Termination Date and the lodging of the claim with the WRC on 21 October 2021, that would support their claim for reasonable cause. 

The matter of being on probation in new employment, does not stand up to scrutiny. The Complainant could have sent a complaint form to the WRC without the new employer knowing.

Stating that the Complainant suffered from anxiety without any medical evidence is not sufficient to explain a delay of over nine months in lodging their complaint.

In evidence, it was submitted by the Complainant that they were in receipt of expert HR advice in July or August, 2021. Although July or August was outside the 6-month period, it would have reduced the period over the 6 months if a complaint had been lodged with the WRC.

The Complainant’s Representative stated that the Complainant needed help filling in the complaint form but was unable to get such assistance as they were unable to travel home due to pandemic travel restrictions.  I do not accept the Complainant would have needed to travel home for such assistance; it could have been given over a remote application or, failing that, a simple telephone call.

Having considered the Labour Court findings referred to above, I am obliged to find that the complaint made by the Complainant cannot proceed. The length of delay in this case was significantly more than a minimal one. Taking these findings together, I conclude that the claim cannot proceed as it is statute-barred pursuant to section 77 of the Employment Equality Acts.

Therefore, for the reasons set out above that I find that the Complainant’s claim is statute barred. I do not have jurisdiction to hear the matter.

Out of Time, reasonable cause.