Complainant

Respondent

Parties

Mr Ayo  Egbon

Ballyfermot Chapelizod Partnership, BCP

Representatives

  In person

Shona Ryan, Ibec

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-00050868-003

19/05/2022

The Complainant was employed by the Respondent as a Computer Systems Administrator. Employment commenced on 12th July 2020 and ended on 8th June 2021. This complaint was received by the Workplace Relations Commission on 19th May 2022.

Preliminary Matter – Time Limits.

When asked why he had waited so long before submitting a complaint to the Workplace Relations Commission the Complainant stated that he was unaware of what was contained within the legislation.

The Complainant had earlier submitted the following response to the Workplace Relations Commission when asked to explain the delay in submitting the complaint.

“In response to the letter received to state the most recent date of my discrimination CA – 00050868 – 003.

The discrimination took place on several days, I cannot recall the dates. The meeting I had with Douglas and Anne the CEO when I was yelled at, humiliated, and called a liar was around April /May 2021.

About the 6 month period, when I was sacked on the 8th of June 2021. I sent an email to FLAC free legal advice centre to ask for help and lodge a complaint.

This was during the peak of the pandemic, it took a few weeks to come back to me and I was advised to contact a lawyer, which at the time I could not afford lawyer fees.

Then I contacted FLAC a second time, before I was asked to contact the WRC to lodge a complaint.

This is why it took more than 6 months”.

Preliminary Matter - Time limits

The Complainant was dismissed during his probation on 8 June 2021. The Complainant’s claim is manifestly out of time. The Claim was received by the WRC on 19 May 2022. This is 11 months and 1 week out of time.

Section 41 (6) and (8) of the Workplace Relations Act 2015 states:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates…”

The Employment Equality Act 1998 outlines:

“(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.”

The Respondent submits that there is no discretion under the Act for an Adjudication Officer to further extend the time limit past the 6-month period, unless “reasonable cause” is proved.

The Acts refer to “reasonable cause” as permitting an extension of the statutory time limits. The tests applied by the Labour Court for extensions of time under the Organisation of Working Time Act (and other legislation with the same wording) have been well established.

The respondent cites the case of Cementation Skanska v Carroll, DWT0338, where the Court articulated the test by stating: “It is the Court’s view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant 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 Complainant has a good arguable case.”

The Court’s explanation in Cementation Skanska, drew heavily from the High Court 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. Costello J stated: “The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”.

In the case of Bus Eireann v SIPTU PTD048/2004, the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case ‘where it could lead to considerable savings in both time and expense’ and where the point was ‘a question of pure law where no evidence was needed and where no further information was required referencing the judgement of O’Higgins CJ in Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242.

In the case of Britney Sugar v Supervalue ADJ-00035908, the Complainants claims were presented more than 10 months after the Complainants employment ceased. The Adjudicator adjourned the hearing to allow a decision to be made on the preliminary matter. If the complaints were deemed to be in time, a further hearing would be scheduled. The Adjudicator found the claim to be out of time.

In the case of Employee v Employer UD969/2009, the Employment Appeals Tribunal was asked to decide on a preliminary matter first before moving to hearing the substantive case. Given the significant preliminary points raised, the Tribunal moved to hear the preliminary matter first and reach a decision on same.

The Complainant argues that he requested support from Flac however it is the respondent’s position that ignorance of the law is not an excuse. The Respondent notes the decision of the EAT in Byrne v Quigley in which the Complainant, in arguing for an extension of the time limit in order to pursue his claim, argued that he was not aware of his rights/ the provisions of the legislation. The Tribunal found that ignorance of the law was not an excuse, and on this basis the Respondent argues that such an argument on the part of the Complainant would fail to “afford a justifiable excuse for the delay”.

 It is also noteworthy to mention that all staff are encouraged to join a trade union and forms are displayed in the canteen. This is also included in the staff handbook. Contacting Flac on a mere two occasions is not an excuse of reasonable cause and it is entirely unreasonable to expect this would take almost 12 months. The Complainant has also provided no proof of these attempts to contact, and the burden of proof is on the Complainant in this regard.

       It is submitted by the Respondent that the Complainant has failed to put forward any reasonable cause which might have caused a delay in lodging proceedings. The Respondent does not accept that in all reasonableness, the lodging of this complaint should not have taken until 19 May 2022, some 11 months and 1 week since his probationary dismissal to which the complaint relates. As such there is nothing in the circumstances of this complaint which could be considered reasonable to have prevented the Complainant from making the complaint.

The Respondent submits that the adjudicator assigned to hear this case has no jurisdiction to do so, and therefore requests that the claims fail on the preliminary matter.

The preliminary argument presented by the Respondent’s representative is a strong one. Section 77 of the Act at subsections (5) and (6) read as follows:

(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.

(6) If on application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant’s case (other than a claim not to be receiving remuneration in accordance with equal remuneration term) being referred within the time limit in subsection (5) –

(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, subsection (5) 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

(b) where such direction is given, this Part shall have effect accordingly

In the instant I can find no exceptional circumstances that would merit an extension to the time limit of 6 months. The Complainant took 11 months and one week post termination to submit a complaint to the Workplace Relations Commission.

I accept the preliminary argument presented by the Respondent and find that there is no case to be answered. The complaint is not well-found.

I accept the preliminary argument presented by the Respondent and find that there is no case to be answered. The complaint is not well-found.

Employment Equality Act, 1998. Time Limits.