Complainant

Respondent

Parties

Anna  Lazaridou

Roe & Co Distillery (Diageo Ireland) Diageo Ireland

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-00057569-002

06/07/2023

The termination of the complainant’s employment took place on July 11th, 2022, and she alleges this was a discriminatory dismissal.  She submitted her complaint to the WRC on July 6th, 2023, just under one year later.

Accordingly, a preliminary issue arises in relation to whether the complaint has been made within the statutory time limits.

The complainant explained that she was continuing to explore the possibility of new job opportunities with the respondent and that this was a factor in delaying her reference to the WRC.

A decision on this was reserved in the hearing and the complainant was facilitated with a short adjournment to particularise her complaints and the alleged breaches of the Act.

She identified these as not being allowed to express opinions in the course of her probation review meetings, and a number of incidents including a health and safety incident for which she could not provide dates or details, and finally an allegation that she was not given work related projects when a male, Irish co-worker was.

The respondent objected to any extension of the time limits on the grounds that no reasonable cause had been shown for doing so.  It also noted that none of the issues now referred to as alleged breaches of the Act had ever been raised with it before.

The respondent set out the various stages of its management of the probationary process.

At the first probation review meeting the elements requiring performance improvement were clearly set out and support measures were put in place, including a series of weekly meetings with their manager to review performance.

At the second review meeting, there having been no improvement her probation was terminated, having given her the right to be represented at the meeting.

Supporting documentation was submitted in evidence of minutes of the probation meeting and correspondence with the complainant.

I address the issue of the time limits first.

The test to be applied in extension of time applications under the Acts, is that formulated by the Labour Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carrol Determination DWT 0338 and in other cases.

“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.”

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said in Department of Finance v IMPACT. [2005] E.L.R. 6.  that it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it.

This imports a clear objective standard into the test.

The respondent has not come close to this threshold.

Her only excuse for delaying a reference to the WRC was that she thought it would interfere with her prospects of renewed employment with the respondent. This is understandable, but not sufficient to ground the extension she seeks to bring her complaint within jurisdiction, and she must accept the consequences of her decision not to submit her complaint in time.

While it is unnecessary to say so given that finding on jurisdiction, on the basis of the incidents she belatedly submitted as the particulars of her complaint, there is little evidence that she would meet the standard required to make out a prima facie case.

Accordingly, her case does not succeed.

For the reasons set out above complaint CA-00057569-002 is not well founded.

Time Limits.