Complainant

Respondent

Parties

Roger  Bejenaru

Kedington Ltd.

Complainant

Respondent

Representatives

 Self- represented

CIF

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00048750-001

22/02/2022

The complainant submits that he was discriminated against contrary to the provisions of the Employment Equality Act, 1998, (“The Act”) on 11/06/2021 on the grounds of race and age when he was offered a promotional post with less favorable conditions attaching to the post than those afforded to persons of a different nationality and age.

The complainant was employed as a technician in the respondent IT infrastructure provider company from the 17/8/2017 until his resignation on 27/8/2021.

He earned €707 gross, €574 net per week.

He submitted his complaint to the WRC on 2/2/2022.

The respondent denies that they discriminated against the complainant under any of the grounds cited in the Acts as amended. The complainant submits that he was discriminated against contrary to the provisions of the Act, on 11/06/2021 on the grounds of race and age when he was offered a promotional post with less favourable conditions attaching to the post than those afforded to persons of a different nationality and age.

The respondent also submits that the complainant has failed to make out a prima facie case of discrimination

Furthermore, the complainant failed to specify the grounds of his complaint in the complaint form.

More importantly, the respondent submits that as the alleged discrimination happened on the 11th of June 2021 and the WRC received this complaint on the 22nd of February 2022, the complaint is outside the 6-month time limit within which a complaint must be lodged in accordance with Section 77 of the Employment Equality Act 1998.

The case made for an extension as provided by section 77(5(b) of the Act as amended is the complainant’s statement that he was waiting on two correspondences from his employer and the WRC. The respondent submits that these reasons do not amount to exceptional circumstances to grant an extension in accordance with section 77(5(b) of the Act as amended.

The respondent refers to the Labour Court determination of Dublin City Council -v- Skelly DWT212, where the Court held that,

 “…a claimant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay”

The two correspondences cited by the complainant as amounting to reasonable cause consist of a response which he was awaiting for from the respondent Senior Account Manager concerning his tax liabilities, the correctness or otherwise of a tax deduction made in 2019 and the impact of these matters  on a pay rise attendant on a promotion to the position of charge hand. The Senior Account Manager did initially email him back on 28th July 2021 and subsequently spoke to him the following day about the issue. The respondent offered to engage an independent accountant for him, but the complainant declined this offer and resigned in August 2021.

The second ground which the complainant states delayed his lodgement of this complaint was the WRC lack of response to his complaint lodged on 30/7/2021 under the Payment of Wages Act,1991. However, this complaint is separate to this complaint.

In the case of Cementation Skanska (Formerly Kvaerner Cementation) Limited v. Carroll, the Labour Court formulated the test for delay due to reasonable cause as follows:

“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 complainant submitted a complaint under the payment of Wages Act, 1991 to the  WRC in July 2021 therefore he could have submitted a complaint of discrimination within the appropriate timeframe alongside his complaint under the payment of Wages Act  1991 of July 2021.

The complainant never took a grievance with the company and according to his resignation letter left on good terms with the company.

The respondent asks the adjudicator to declare the complaint to be unfounded.

The complainant asks the adjudicator to exercise jurisdiction in his favour as per section 77(5)(b) of the Act.

He asks for an extension as he was called to an interview with the respondent Program Manager and Senior Account Manager to be promoted to the position of charge hand on 11/6/2022. The respondent Senior Account Manager told him that he would be promoted, but that the salary increase going with this charge hand position would be withheld until he agreed to accept that the tax rebate payable to him as a result of the period spent working in Denmark was the rightful property of the respondent, they having paid tax for him and the 48 other employees assigned to work on a project in Denmark in 2019.

The reason for the delay in lodging his complaint until February 22 was that he was waiting for the respondent to answer the question as to why the tax rebate paid to the respondent was not properly payable to the complainant and why any issues concerning his ongoing tax liabilities should interfere with a pay rise attendant on a promotion. He asked the respondent to explain how he owed money to Kedington. He did not get an answer to his questions. He also wanted an amicable solution.

 He was unaware of his legal rights and obligations in relation to taking a complaint to the WRC

Furthermore, he was waiting for the WRC to respond to him on the Payment of Wages Act complaint.

He asks the adjudicator to accept that these circumstances amount to reasonable cause.

I must decide if reasonable cause exists to allow jurisdiction as per section 77 of the Act.

Relevant law.

 “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”.

Section 77 of the Act as amended addresses the jurisdiction to extend time and provides as follows:

“(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”.

In examining “reasonable cause”, 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.”

The High Court in Smith v Cisco Systems Internetworking [Ireland] Limited [2020] IEHC 714 considered an appeal on a point of law from a Labour Court decision. In that decision, the Appellant alleged that the Labour Court had erred in law in finding that a lack of documentation in his possession had not amounted to a reasonable cause for extending the time period to bring a complaint of discrimination on grounds of race.  Meenan J considered the Labour Court refusal and stated,

 “The decision of the Labour Court clearly considered an extension from six months to twelve months as sought by the appellant. In refusing such an extension, the Labour Court did not accept the reason put forward by the appellant: lack of documentation. The Labour Court concluded “that no great degree of documentation is required in order for the appellant to have made a complaint to the Workplace Relations Commission as regards any event or occurrence which he believed to constitute discrimination. Again, the appellant has identified no error of law as would lead this Court to overturn the ruling of the Labour Court.”

Application of the Law and authorities to the circumstances of this complaint

It is difficult to accept that the complainant’s pursuit of further information and the non-provision of same – a contested matter -in the instant case amounts to reasonable cause to delay the submission of this complaint within the time limits. Awaiting a response to the lodgement of his complaint under the Payment of Wages Act 1991, is a wholly unrelated matter which could have had no influence on the submission of the instant complaint.

 In addition, another stated reason which the complainant advanced to delay submitting the complaint -a desire for an amicable solution- runs into difficulty as the complainant had left the employment of the respondent by 27/8/2021, and so the impetus for an amicable solution was no longer so critical if even live. As per Salesforce “the factors relied upon to explain the delay ceased to operate before the complaint was presented”.

The complainant also stated that he was unaware of his legal rights and obligations. The High  Court held in The  Minister for Finance v CPSU and Ors [2007} 18 ELR 36, that ignorance of one's legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit.

While these reasons relied upon by the complainant may explain a delay, I cannot find, therefore, that the reasons presented prevented the complainant from submitting his complaints within the statutory time limits. I am unable to find that they amount to reasonable cause such as to allow for the extension of a further six months by virtue of the operation of section 77(5)(b) of the Act

I find that I do not have jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint.

Statutory time limits; reasonable cause.