Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

David Mccarroll RDJ LLP

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-00056745-001

18/05/2023

The Respondent at the outset made an application to have the matter heard in camera. That application was grounded on a sample of emails which have been sent to over 1000 individuals both inside their organisation and to strangers. The content of the emails is very concerning, potentially defamatory and most likely a breach of data protection laws. The Complainant stated that she was unaware that emails were being sent and was shocked to hear it.

There were over 100 requests for on the online hearing link and approximately 40 individuals, additional to the parties, logged on for the hearing. That is in or itself was very unusual.

The content of the emails leads me to conclude that they could only have been sent by someone with knowledge of the project the Complainant was working on and its’ participants.  The sending of over 1000 anonymous emails, the content of which are very concerning, leads me to conclude that there is a real risk of harm to the Respondent and/or its employees. Therefore, I directed that the matter be heard in camera.

The Respondent raised a preliminary objection with regard to the claims being statute barred and submitted that I deal with it at the commencement of the case as a preliminary matter.  Section 79(3A) of the 1998 Act expressly provides for the consideration of a question of law to be addressed as a preliminary issue.

The Complainant commenced her employment on the 1 February 2022 and handed in her notice in writing some three months later on the 28 April 2022. The Complainant’s WRC Complaint Form was filed electronically on the 18 May 2023, in excess of 12 months’ later. Within the WRC Complainant Form the Complainant alleges a series of interactions which she seeks to refer as acts of alleged discrimination under section 77 of the 1998 Act, though they are vigorously denied. The most recent interaction cited is the meeting and exchange wherein the Complainant handed in her notice on the 28 April 2022. There have been no more recent interactions such that same made amount to allegations of discrimination.

Section 77(5) of the 1998 Act provides as follows:- (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] 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.

No such “reasonable cause” application has been made but it is nevertheless the submission of the Respondent that the Complainant is manifestly out of time. Even allowing for an extension of six month on grounds of “reasonable cause”. There is simply no statutory power available to the WRC to facilitate the consideration of such late claims and the Adjudication Officer would, most respectfully, be acting ultra vires were the claim to be considered beyond this preliminary issue. In the circumstances of such a belated, statute barred claim, there is no basis for the consideration of the issue of “reasonable cause” as Section 77(5)(b) of the 1998 Act only permits an extension on such a basis for “such a period not exceeding 12 months”. Even were that applied the above dated claim are manifestly out of time as the period in question exceed 12 months.

 The established test for deciding if an extension of time should be granted (as per the Labour Court case of Cementation Skanska v Carroll, DWT0338), does not in fact arise for consideration here as the added time would still not bring the claims within the maximum 12 months.

Additionally, for the avoidance of doubt, the Complainant is not entitled to seek to rely upon her later issuance of an internal complaint regarding earlier allegations of discrimination or the outcome stages of any internal process as a form of fresh discrimination such that same might be said the “last in a chain” and save the earlier allegations in respect of their being otherwise statute barred. In the regard the Respondent relies upon a number of cases:-

Brothers of Charity Services Galway v Kieran O’Toole[EDA 177]), wherein the Labour Court in determining a claim under the 1998 Act found:- “Exhaustion of Internal Mechanisms The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts. Section 77 of the Acts, is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the Workplace Relations Commission, such a complaint should be in writing and submitted within the time limits provided for in Section 77 (5)” The Court also held that :- “it is clear that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of discrimination (or victimisation) within the time limit. It held that there must be some reality in the claim that acts of discrimination actually occurred within the limitation period. Otherwise, a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”

Pfizer Pharmaceuticals Ireland v Whelan EDA 24/2019 wherein the Labour Court in addressing a claim under the 1998 Act determined:- “The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent her from bringing her complaint within the statutory time limit, the Court must conclude that the Complainant has failed to establish primary facts from which it could be inferred that discrimination has occurred during the cognisable period for the complaint. The Complainant has failed to discharge the burden of proof which rests upon her and has failed to establish a prima facie case of discrimination within the cognisable period of the within complaint. In consequence of this conclusion the Court cannot address the contention that events occurring within the cognisable period were part of a continuum of discrimination and as a result the Court does not have jurisdiction to consider the complaints made by the Complainant relating to events outside the period set out in the Acts for the making of a complaint of discrimination. As a consequence, the complaint is statute-barred and the Court cannot proceed to hear the substantive matter.”

That position is also restated in the Labour Court case of Beaumont Hospital v Kaunda EDA 30/2019. c. McEvoy v Business Mobile Security Services Limited T/A Seneca (EDA 1621) where the Labour Court in determining a discrimination claim under the 1998 Act had to address the fact that Mr McEvoy had initiated an internal grievance which eventually concluded on the 31st of May 2014 without upholding his complaint and had only thereafter submitted his claim to the then Equality Tribunal on the 14th of June 2014. He sought to assert that the most recent date of discrimination was in fact the 31st of May 2013 (being the date his grievance outcome had been communicated to him). The respondent company successfully argued before the Labour Court that Mr McEvoy was out of time in submitting his complaint on the 14th June 2014, given that a complaint must be commenced within 6 months of the date of the last or most recent act of discrimination. Mr McEvoy sought to argue before the Labour Court that he had raised the matter through an internal process and was legitimately awaiting the outcome of that process before commencing proceedings under the Act. He also argued that the company’s decision at the end of that procedure to reject his complaint amounted to a final act of discrimination against him – the last in a chain - and therefore he was in his view entitled to rely on that act of discrimination to bring the proceedings within time. However, the Labour Court found that “the last act of discrimination occurred no later than August 2013”, i.e. the date of a decision being challenged by him as discriminatory. From that point, the Labour Court determined that Page10 Mr McEvoy had a choice to make as to whether he would pursue the mater through the statutory remedies available to him (ie a claim under the Act) or whether he would avail of an internal grievance procedure in an effort to secure a resolution. He chose the latter. There was a delay in processing the grievance which lasted for more than 6 months. In the meantime, Mr McEvoy was out of work on sick leave. Again, he decided to allow that procedure to take its course while time was running under the Act. When the matter was eventually brought to a conclusion under the grievance procedure the time limit for bringing a complaint under the Act had expired. The Court determined:- “[Mr McEvoy] sought to describe the decision not to uphold his grievance as a further act of discrimination. The Respondent rejects that proposition. The court has considered the matter and has decided that, in this case, the decision by the Respondent not to uphold the grievance cannot amount to an act of discrimination under the act. The court further found that:- “[Mr McEvoy] made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction. The court finds that such a decision cannot justify the delay in bringing proceedings under the act and accordingly determines that the complaint is statute barred.”

The Respondent also argued that ignorance of one’s rights is not a basis for reasonable cause. In that regard the Respondent relies upon the High Court decision of Minister for Finance v CPSU & Ors [2007] 18 ELR 36, wherein the Court held 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 the statutory time limit”.That decision has been consistently followed by in a range cases, including Globe Technical Services Limited v Miller (UDD1824). That was a dismissal claim in which Ms Miller asserted a lack of knowledge and the Court, upon citing Minister for Finance v CPSU, determined that the appellant was relying on her lack of knowledge as the basis for her contention that there existed reasonable cause for the delay in making her complaint to the Workplace Relations Commission and found:- On the basis of the jurisprudence set out above and the facts of the case as presented the Court does not accept the submission of the Appellant and finds that she has not demonstrated reasonable cause for the delay in making of her complaint.

The Respondent argues that the within claim be disposed of on grounds that the claims made are manifestly out of time and that a preliminary determination be issued in respect of same.

The Complainant in response to the Respondent’s preliminary application that the matter is out of time relied on correspondence from Information and Customer Services in Carlow when making the decision when to file her complaint. On the 15th June 2022 she emailed ICS stating “Hello, I was an international staff member at xxxx. I resigned due to discrimination. I filed a discrimination complaint at my xxxx and it is currently underway. I heard that I have 6 months to bring a complaint to the WRC. However, can a complaint be brought later to the WRC if the internal process takes longer?”

She received a response to her query on the 16th June 2022 from the WRC, which stated: “Thank you for contacting the Workplace Relations Commission. Please find the following information in relation to your query. Yes, as it will be ongoing. I trust this will be of assistance”,

The Complainant lodge a grievance with employer on the 18th May 2022 under the Equal Opportunities Grievance Procedure. That is the complaint she was referring to in her email to the WRC on the 15th June 2022. That internal process was not completed until July 2023. The Complainant stated that she wasn’t sure whether an appeal process would be something that could stop the statute of limitations clock from commencing its’ countdown, so she decided to file her complaint then, just in case it did not. Her complaint was filed on 18th May 2023.

The Complainant alleges that there were acts of discrimination following her resignation. She resigned in April 2022  and her employment ended on the 1st June 2022 therefore, from that point, was no longer employed by the Respondent.  The last of those acts of discrimination was, she alleges, on 14th March 2023. The Complainant accepts that she was not an employee of the Respondent at that point. She did commence employment in another jurisdiction in July/ August 2022.

The Complainant commenced her employment with the Respondent on 01st February 2022. She resigned from her employment on 28th April 2022 and her employment ended on 1st June 2022.

 An employee is defined by Section 2 (1) of the 1998 as “ a person who has entered into or works under (or where the employment has ceased, entered into or worked under) a contract of employment”  Section 8 (1) set out the obligations on an Employer in relation to discrimination as follows: S 8(1) in relation to – (a) access to employment, (b) conditions of employment, (c) training or experience for or in relation to employment, (d) promotion or re-grading, or ( e) classification of posts, and employer shall not discriminate against an employee or prospective employee and a provider of agency work shall not discrimination against an agency worker”

In general, the act outlaws discrimination in the workplace under the nine categories, set out in Section 6 (2).  Eligibility to bring a claim under the 1998 Act requires there to be an employer/employee relationship between the parties. If that is not present, then a fundamental requirement is missing. The Complainant resigned her position on 28th April and her employment ended on 1st June 2022. She is entitled to make allegation of discrimination up to that date however thereafter she was no longer an employee of the Respondent, and she cannot bring a claim of acts of discrimination against the Respondent from that date as the employer/employee relationship, no long existed.  On that basis I can only consider the acts of discrimination up to and including the 1st June 2022.

The Complainant sets out in her “Statement of case” the alleged acts of discrimination and the dates of their occurrence. They are the 24th March 2022 and the 28th April 2022. She alleges acts of discriminatory victimisation on the 5th May and the 19th May 2022.  I note that the email of the 19th May was simply to tell the Complainant that she did not need to attend a meeting as she was on annual leave.

Section 77 (5) of the Act provides as follows:

(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] 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 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 (5) mirrors, with regard to the time limits, Section 41 (6) and (8) of the Workplace Relations Act 2015. The same principles apply to both.  

“Reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech   the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.  Here the test was set out in the following term;

“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 of 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 had not been present, he would have initiated the claim on time.”

In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should be enlarged for “good reason” in judicial review proceedings pursuant to Order 84 Rule 21 of the Rules of the Superior Courts 1986.   That approach was held to be correct by the High Court in Minister forFinance v CPSU and others .   The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation .  Here Costello J (as he then was) stated as follows; “The phrase “good reasons” 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 that he or she were justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay”

It is clear from the authorities that the test places the onus on the Complainant on 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 Complainant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, I must be satisfied, as a matter of probability, that the complaint would have been presented 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. 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 the passage quoted above, 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.

It was clear from the Complainant’s own submission and from her email to the WRC on the 15th June 2022 that she was aware of the 6 month rule in relation to filing her complaint. She did not file that complaint on time due to being told by Information and Customer Services in Carlow, in response to the question, “Can a compliant be brought later to the WRC if the internal process takes longer?”  “Yes, as it will be ongoing”. The reply to her question was simply wrong. Section 77 (5)(a) clearly states “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”. If the discrimination was ongoing a Complainant could rely on “the most recent occurrence” but the time limit is six months from the most recent occurrence.  In Brothers of Charity Services Galway v Kieran O’Toole[EDA 177]), wherein the Labour Court in determining a claim under the 1998 Act found:- “Exhaustion of Internal Mechanisms The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts. Section 77 of the Acts, is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the Workplace Relations Commission, such a complaint should be in writing and submitted within the time limits provided for in Section 77 (5)” The Court also held that :- “it is clear that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of discrimination (or victimisation) within the time limit. It held that there must be some reality in the claim that acts of discrimination actually occurred within the limitation period. Otherwise, a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”

The Complainant stated that she was aware of the six months rule in her email to ICS however she decided to ignore it based on what she was told by ICS. It is well established in this jurisdiction that ignorance of one’s rights is not a basis for reasonable cause. In Minister for Finance v CPSU & Ors [2007] 18 ELR 36, wherein the Court held 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 the statutory time limit”. That decision has been followed by in a number of cases, including Globe Technical Services Limited v Miller (UDD1824). The Court determined that the appellant was relying on her lack of knowledge as the basis for her contention that there existed reasonable cause for the delay in making her complaint to the Workplace Relations Commission and found:- “On the basis of the jurisprudence set out above and the facts of the case as presented the Court does not accept the submission of the Appellant and finds that she has not demonstrated reasonable cause for the delay in making of her complaint.”

The alleged acts of discrimination the Complainant outlines in her Statement of case are on the 24th March 2022 and 28th April 2022. The alleged acts of vitimisation were on the 5th May and the 19th May.  The Complainant resigned her position in writing on the 28th April 2022. She did not file her complaint until the 18th May 2023. For the reasons set out above I find that the Complainant has not established reasonable cause but even if she had, the complaint would still be outside of the twelve months allowed by statute when one considers when the date of the most occurrence was.  Accordingly, I find that the complaint is statute barred and I do not have jurisdiction to hear it.

The Complaint is statute barred.

Statutory Time Limits. Reasonable Cause. Ignorance of the Law. Legal Advice. In Camera.