Complainant

Respondent

Parties

Verônica  Araújo Cruz

Triglen Holdings Ltd.  [amended on consent at hearing]

Representatives

  Self-Represented

Mr Rory Treanor BL instructed by Mr Gerry McGreevy Brady McGreevy 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-00056767-001

19/05/2023

This matter came before the WRC dated 19/05/2023 as a complaint submitted under section 77 of the Employment Equality Act, 1998.  The Complainant at all material times was employed as a member of bar staff working on average 30 hours per week and paid €11.00 per hour gross.  The Complainant was employed by the Respondent from 01/08/2022 until she resigned her employment on 25/09/2022.  The Respondent is a limited liability company trading as a hotel, bar and restaurant. 

CA-00056767-001

The Complainant claims she was discriminated against on grounds of race and discriminated against in conditions of employment.  The Respondent denies all claims as alleged or at all.

The Respondent filed submissions to the WRC on 06/10/2023.  The Complainant did not file any written submission and relied on the narrative on her WRC complaint form. 

At the outset of the hearing the Respondent representative raised a preliminary objection as to jurisdiction.  In circumstances whereby this matter may be determinative of the entire proceedings, it will be considered in advance of the substantive matter.  It was indicated to the parties that I would hear submissions on the preliminary objection and reserve my position on same.  In the event that the preliminary issue is found for the Complainant then a decision on the substantive matter will follow.  In the event the preliminary issue is found in favour of the Respondent then I am precluded from considering the substantive case. 

The Respondent raised a preliminary objection to the jurisdiction of the WRC to hear this complaint on the basis it was statute-barred under section 77(5) of the Employment Equality Act, 1998 which provides as follows:  

(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.

The Respondent submits the Complainant alleges the last date on which an act of discrimination occurred was 25 September 2022.  The Complainant commenced the within claim on 19 May 2023.  The Respondent submits the Complainant’s claim was commenced in excess of 6 months subsequent to the last date of alleged discrimination. 

The Respondent submits the Complainant must satisfy that there existed or exists some “reasonable cause” that would permit the WRC to extend the time for the commencement of the claim.  The standard for reasonableness was considered in Department of Finance v. Impact [2005] E.L.R.6 where it was held by the Labour Court:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd.  This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness.  The standard is an objective one but it must be applied to the facts known to the applicants at the material time.”

In Employment Equality Law [Bolger, Bruton and Kimber, 2nd Ed. 2022] (at 16-109), following a review of relevant caselaw states:

“These cases establish that if a claimant is in possession of sufficient information or facts to submit a claim for discrimination within the required six-month period, if subsequent circumstances or information changes matters, that will be sufficient to ground an extension of time application.  Further ignorance of legal rights is not a justifiable excuse on which to base an extension of time application; the crucial factor is the knowledge of the facts giving rise to the potential claim.”

The Respondent submits from 25 September 2022 onward the Complainant was aware of the relevant facts that form the basis of the within claim.  The Respondent submits it is for the Complainant to adduce evidence that there was some reasonable cause that prevented the commencement of a claim within the statutory time limit. 

The Complainant in her response to the WRC when she was initially placed on notice of a problem with time limits in this case stated that she was emotionally shaken by what happened and she experienced a difficulty of communication which would have made everything more difficult.

The Complainant while giving direct evidence at hearing when asked why she did not submit the complaint within the statutory time limits stated she did know anything about the WRC until she undertook a course with the Private Licensing Authority during which she heard all about the WRC for the first time.  The aforesaid course commenced in or around February and was completed on 20 April 2023. 

CA-00056767-001

In relation to the preliminary objection that this matter is statute-barred, it is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions. 

Section 77(5)(a) of the Employment Equality Act, 1998 as set out above requires a complaint to be referred to the WRC within six months from the date of occurrence of the discrimination to which the claim relates or, as the case may be, to the date of its most recent occurrence.  Section 77(5)(b) provides for an extension of time of up to twelve months if reasonable cause is shown. 

Reasonable cause is not defined in the Act but it has been considered in a significant body of case law in the WRC, the Labour Court and the High Court. 

Section 41(6) of the Workplace Relations Act, 2015 provides as follows in respect of time limits: 

“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.” 

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the period referred to in subsection (6) or (7) (but not later than six months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.” 

It is noted that the relevant test in both Acts is “reasonable cause”. 

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay. 

The established test for deciding if an extension of time should be granted for “reasonable cause” is set out in the Labour Court determination in the case of Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] 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.  In the context in which the expression reasonable appears it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material 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.”

For an explanation of reasonable cause to succeed –

(i)               A complainant must explain the delay and afford an excuse for the delay.

(ii)              The explanation must be reasonable.

(iii)            There must be an objective standard applied to the circumstances of the case.

(iv)            There must be a causal link between the circumstances and the delay.

(v)              A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that reason relied upon provides a justifiable excuse for the actual delay. 

I note the Complainant alleges the last date on which an act of discrimination occurred was 25/09/2022 and the initiating complaint referral form was received by the WRC on 19/05/2023.  Under section 77(5)(a) of the Employment Equality Act, 1998 the initiating complaint referral form must be submitted to the WRC on or before 25/03/2023.  I find, therefore, that the complaint has been lodged outside of the time limits prescribed by the relevant legislation. 

I note the Complainant’s assertion at hearing that the reason she did not submit her complaint was because she did not know about the WRC and she is relying on her lack of knowledge as the basis for her argument that reasonable cause exists for the delay in making her complaint to the WRC.    However, as the Labour Court held in Globe Technical Services and Kristen Miller [UDD1824] ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complaint referral as follows:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to the complaint, cannot provide a justifiable excuse for failure to bring a claim in time”. 

I note the Complainant stated she first heard about the WRC when she undertook training for a private security licence. I note this training course ended on 20/04/2023 and I note her complaint was not submitted for yet another month after that. 

For completeness, I note and I have carefully considered the initial reason provided by the Complainant for not submitting her claim where she asserts she was emotionally shaken and that she would have difficulties communicating both of which are assertions that are simply not borne out by the evidence as presented by the Complainant herself. 

The Complainant gave evidence that she interviewed for and commenced a new role within three weeks after leaving her employment with the Respondent following which she embarked on a training course in order to gain a security licence.  I consider it significant that these are endeavours and achievements all of which are counter intuitive to her assertion that she was unable to submit her complaint because she was emotionally shaken and would have difficulties communicating.  

I find her evidence that she was emotionally shaken and would have difficulties communicating to be inconsistent and not borne out by the facts where she stated she interviewed for a new job and commenced on a training course during the relevant period.  On that basis I can find no impediment rendering her incapable of submitting her complaint and I am satisfied there was nothing to prevent the Complainant from bringing this complaint on time.  

Taking all the forgoing into careful consideration I have come to the conclusion that the Complainant has neither explained the delay in initiating her claim nor has she put forward a justifiable basis upon which an extension of time could be granted.  The Complainant has not met the standard of reasonable cause set out in the Cementation case.  Applying Cementation, I find the reason put forward by the Complainant does not explain or excuse the delay; it is not a reasonable explanation; and it does not persuade me to grant an extension of time. 

In relation to the preliminary issue for the reasons set out above, I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the granting of an extension of time.  I find I have no jurisdiction to determine the substantive matter as the complaint is out of time.  I find this complaint to be not well-founded. 

Finally, it should be noted that this finding does not detract from the bona fides of the Complainant or her sense of grievance and reasons for submitting this complaint to the WRC.

CA-00056767-001

In all of the circumstances and for the reasons set out above, I do not grant the extension of time.   The complaint is out of time and statute-barred accordingly. 

no reasonable cause;