Complainant

Respondent

Parties

Hugh  Fagan

Aldi Stores (Ireland) LTD

Representatives

  Appeared In Person

Kiwana Ennis BL instructed by  Vincent & Beatty Solicitors

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-00043438-001

07/04/2021

On April 7, 2021, the Complainant filed a complaint of discrimination on grounds of disability against his former employer. The Complainant presented as a lay litigant at hearing.

On receipt of the complaint, the WRC raised the matter of statutory time limits with the complainant.

On 14 April 2021, the Respondent came on notice in the case through the offices of Vincent and Beatty Solicitors.

There were a number of postponements granted before the case came to hearing on March 3, 2023.

At the outset of the complaint, the complainant had shared that he was seeking legal representation through a number of channels. However, by January 25, 2023, the complainant had confirmed that he was prepared to represent himself at hearing.

As the matter of representation is a matter for the parties alone, both parties were welcomed to hearing on March 3, 2023.

On that day, Kiwana Ennis, BL instructed by Vincent and Beatty Solicitors represented the respondent, having filed a defence in the claim, inclusive of a Preliminary argument on time limits.

On 24 February 2023, I wrote to the complainant and invited him to make an outline submission in the case. He responded in confirmation that the documents already submitted by him were sufficient to assist him in stating his case.

At the conclusion of the hearing, I requested the medical report referred to in the complainant’s own evidence. I received this on March 3, 2023.

Both witnesses gave evidence under oath.

The Complainant worked as a General Assistant with the Respondent supermarket group from August 2017 to his resignation on 16 April 2021. He worked a 30-hour week.

The Complainant has submitted that he experienced discrimination on grounds of his disability, a mental health condition through refusal to provide him with reasonable accommodation and discrimination in relation to conditions of his employment.

An earlier complaint of harassment dated April 7, 2021 was withdrawn .

He gave the most recent date of discrimination as 30 September 2020.

In introducing the body of the complaint to the WRC, the Complainant submitted the workplace complaint made on the alleged discriminatory treatment.

He outlined those two episodes of discrimination occurred on 2 September 2020 and 30 September 2020 in an undated letter but acknowledged as received by the Respondent on 19 October 2020.

“This grievance outlines the issues and how I feel I have been discriminated against, on the ground of disability because of Mental health ….

I feel that Mr A has clearly treated me different in a comparable situation to my colleagues A and B. I also feel that he has discriminated against me on 2 occasions, once when I handed in my sick cert and the other during the meeting. All I wanted was an apology and his ignorance and lack of awareness, a s well as the lack of support from Ms Y are the reasons, I wish to take this further “

He confirmed that on 30 September ,2020, he had informed the respondent of his diagnosis of a mental health condition, for which he was receiving ongoing treatment and was awaiting specific treatment. He explained that he had an adverse reaction to an earlier meeting that month with a manager, on September 2, 2020, and feared for his own welfare. This had prompted him to seek an apology and he maintained that the variance in approach adopted by the Respondent would not have been directed towards him, had he a physical disability or general illness.

The Complainant submitted that he was aggrieved at the manner in which what he understood was an agreed action plan on a grievance outcome was delayed. He believed that he was disadvantaged by the delay and compelled to seek a transfer to another store. He transferred in December 2020 and resigned in April 2022.

Preliminary Issue. Evidence under oath

The Complainant sought an extension of time under reasonable cause. He relied on an administrative confusion surrounding his complaint form that took some time to “unravel”.  The Complainant pointed to a short delay from 29 March 2021 to 7 April as date of claim and asked for leniency. He understood from WRC information that he would be given the opportunity to extend time.

The Complainant submitted that he was aware of the 6-month time limit. He told the hearing that he had made an earlier complaint under ES1 (the Equal Status Act) in February 2021. He realised that he had erred.

He then sent a second complaint to WRC by post. This time, it was on the right form, but was informed by the Information section at WRC that he had filled it in in error. He could not submit the form online as it came “corrupted “He had incorporated the employment equality and equality status aspects on the same form. He withdrew this complaint on April 2, 2021.

The claim dated April 7, 2023, followed.

During cross examination, the complainant acknowledged that he had sent questions to his employer on the Es1 form rather than an actual filed complaint.

The Complainant confirmed that he experienced difficulty in filing his complaint electronically, even, with help between February and April 2021.

He agreed that he had not exhibited any of the copies of the initial complaints. He was unable to identify a date on which the first  claim form was lodged.

He confirmed that he had ticked the box on employment equality and equal status and was obliged to withdraw the Equal Status complaint.

Counsel for the Respondent confirmed that she had a difficulty in believing the complainant as complaint forms may be overpopulated but are subsequently clarified at hearing.

In clarifications, I asked the complainant, if he had considered responding to the letter of acknowledgement issued by the WRC on 13 April 2021, the complainant replied that he had not considered a response apart from his earlier notification of withdrawal on 2 April 2021.

In considering whether to contain the hearing to the preliminary issue as requested by the Respondent.

I confirmed that I intended to press on in my investigation as I was following Kevin Brogan v HSE at the Labour Court, EDA 1633 on parties being permitted to ventilate the preliminary and substantive cases at first instance. I explained to the parties present in the event that the preliminary issue was found for the complainant that a decision on the substantive issue would follow. In the event that the preliminary issue was found in favour of the respondent then I was precluded from considering the substantive case, but I intended to hear both aspects of the case at first instance.

Ibidunni (deceased) v Boston Scientific (Ireland) ltd [2011] 22 ELR 158

The Law

Section 77(5)(a) of the Acts provides: -

(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(6A) provides: -

For the purposes of this section —

(a) discrimination or victimisation occurs—

(i) if the act constituting it extends over a period, at the end of the period,

(ii) [not relevant]

(iii) [not relevant]

The Court in County Cork VEC v Ann Hurley interpreted the relevant sections as follows: -

Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice, or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387).

The Court adopts this line of reasoning.

Applying it to this case the Court finds that the HSE introduced a new qualification requirement in 2004 and has maintained it in place since that date. The Court finds that this new qualification is, in the Court’s view, a regime, rule or practice within the meaning of the Act. The Court further finds that the HSE has maintained it in force since that date.

In accordance with section 77(6A) (i) above the Court finds that it extended over a period of time that has not yet ended. Accordingly, the Court finds that the Complainant is entitled to bring a complaint and to have the substantive matter heard and decided. The Court has formed no view on the substantive matter to be decided. The Court takes the view that both parties are entitled to have the substantive complaint decided at first instance and to have the option of having any decision heard again by this Court on appeal. To do otherwise is to deprive the parties of access to the full set of procedures provided for in the Act. Accordingly, the Court takes the view that it should remit the matter to the Equality Officer for consideration and decision.

Substantive Case:

The Complainant outlined that he had experienced discrimination on grounds of disability due to his mental health. This occurred on 2 September 2020 and 30 September 2020.

At the latter meeting, he had informed two Managers of the Respondent that he had been diagnosed with a mental health condition for which he was receiving ongoing treatment, medication and was awaiting further supportive intervention.

He described a period of severe pressure at work during 2020 and had worked for a period of 8 months without annual leave.

He had walked out of work in response to his struggling there and also in his seeking to process a fall out from the death of a past girlfriend.

The Complainant confirmed that the respondent had been the best company he had worked for.

On reflection, he confirmed that during 2020 he was troubled by his former girlfriends’ death, and he experienced a “breakdown at work”. He confirmed a history of an enduring mental health condition, which he had not felt obliged to share with the respondent before then.

By August 2020, he freely acknowledged that he was struggling at work. The Store Manager was on sick leave. He requested and was given time off.

However, on Friday, August 7, 2023, he experienced a breakdown at work, which was triggered by an interpersonal conflict at the canteen, where the Deputy Manager, Mr A had challenged him on the duration of his break time.

His scheduled shift that day was 6 am to 2pm and the distress magnified around 11 am to 12 pm causing him to walk out, followed by suicidal ideation.

Mr A contacted him the next day and asked if he was coming back to work? To which the complainant said he “quit “At this point, the complainant deviated into previous manifestations of his illness, but I reminded him that I was seeking facts for the instant case.

On the following Tuesday. he submitted a sick note that reflected depression. He attempted to re-engage with the company and returned to “light work “on 17 September 2020 post a visit to the company Dr.

The Complainant went back to the workplace on September 2, 2020, when he brought his sick note to work and presented it to Mr A who remonstrated him for the negative chain reaction caused by his sick leave and told him that “he was disgusted “with him. The complainant feared for his job but did not really respond to Mr A, who told him to” call me if you want anything “

The Complainant requested a meeting on 30 September 2020 with the Area Manager and brought a witness. This lasted 2.25 hrs.

He put forward two colleagues who experienced general illnesses who he maintained were not treated like he had been when they reported ill.

The complainant sought an apology for Mr as outburst on September 2. Mr A said sorry but said that he would not take back the outburst of Sept 2. He was advised to let the matter lie but remained troubled. The Complainant said that he withdrew from previous collaborative working.

 He had come in on September 2   to explain his diagnosis and mentioned that he was on the waiting list for further intervention, but he said the meeting of Sept 30 was “cold” and supportive of Mr A.

When asked why he believed that he needed to present a sick note in person? he replied that he lived 5 minutes away.

He attended the company Doctor on three occasions but did not disclose his mental health background.

At the same time, the complainant said that he withdrew from everyone as he was in dread of the grievance. He was clear that he wanted Mr A disciplined.

He explained that the reasonable accommodation for his diagnosis of borderline personality disorder sought was an acknowledgement of his illness and that Mr A be disciplined.

He acknowledged that the grievance went in his favour with a Recommendation for training in mental health, going forward.

Mr A was sorry, and the chair offered to give a platform for that apology.

Mr F, a Manager for the Respondent phoned him at work on February 21, 2021. The casual contact unsettled him, and he informed Mr F that he was in the middle of “taking it to a Tribunal “

The Complainant confirmed that he had changed his phone in 2020 whilst in the UK.

During cross examination and in response to Counsels questions, the complainant acknowledged that Mr A and he had been “good friends “He accepted that his agreed holidays were brought forward but had been overtaken by sick leave.

In seeking a clarity in the claim, the complainant responded detailing the 2 and 30 September events were linked to his mental health. He disputed Mr as right to speak to him in that vein “not when I was just diagnosed “Mr A expressed a vulnerability in the absence of the store manager and the complainant was viewed by Mr A as adding to that pressure.

He believed that the outburst had caused him to consider suicide. He had left the workplace in tears on September 2, 2020

The Complainant acknowledged that he had been under work pressure and snapped by 7 August 2020. He accepted that the company had communicated with him their preparedness to overlook his “walk out “

The Complainant was uncertain if he had been paid for sick leave The Respondent said 3 weeks of sick leave and two weeks annual leave were paid. He had not considered an appeal of the grievance as “the window was too short “

He confirmed that he was happy with the company letter of November 16 and confirmed that he had not refused the apology but needed time to think about it.

He confirmed a variance in his phone number, where the respondent had his old phone number. He viewed that the respondent managers held responsibility for the phone management. He detailed a delay from 16 November 2020 to 30 January 2021 on the respondent contacting him. The Complainant transferred store in December 2020.

In clarifications, the complainant explained that he had applied for a transfer through the area manager and did not submit a reason for the transfer. He left the respondent employment in April 2022 and is currently engaged in nightwork.

In concluding remarks, the complainant acknowledged that he had mis read the outcome of Mr Fs findings on discrimination: mistreatment.

In responding to the Adjudicator on what redress he sought, he responded “justice “

The Complainant clearly articulated that the Mr A issue had caused him to feel isolated from the “respondent family “

He was troubled by the delay attributed to the variance in phones, which was avoidable.

In addressing the respondent reliance on the apology being available, the complainant discounted this as not “meaningful”. He confirmed that he did not have any other live actions against the respondent.

The Respondent operates a large Supermarket group and has denied the claim of discrimination.

The Respondent raised a Preliminary argument on time limits at the outset of the hearing.

Preliminary Argument. statutory time limits

Counsel for the Respondent submitted that the claim was not in time as provided in the provisions of Section 77(5) (a) of the Act, which requires an occurrence of discrimination within the 6 months preceeding submission of the complaint.

In the instant case, the complainant had marked the last date of occurrence as 30 September 2020. Counsel acknowledged that the WRC had raised “the out of time “issue with the complainant by letter on 15 April 2021.

The Complainant had submitted a letter to WRC dated 14 April 2021

“Regarding my original complaint 42176 which was sent to you in time, I had to withdraw under the wrong legislation. I sent you CA-43438 in its place “

It was the respondent understanding that the complainant’s explanation for failing to comply with the statutory six-month time limit was due to his having attempted to lodge his complaint under the incorrect legislation.

In quoting Cementation Skanska v Carroll DWT 0338, on reasonable cause, Counsel argued that to benefit from an extension of time 77(5) (b) provides, the complainant was obliged to prove that his failure to present his complaint within 6 months was due to reasonable cause.

Dept of Finance v IMPACT [2005] ELR 6 overtaken by Minister for Finance v Civil and Public Service Union [2007] ELR 36 “no justifiable excuse for the delay had been established.”

Avery Weigh Tronix v Kinsley, DWT 1244 “had the complainant knowledge of the facts giving rise to the claim?”

The Complainant had lodged his workplace grievance on 19 October 2020. Counsel contended that statutory time limits, while perhaps harsh were necessary and the complainant was obliged to comply with those time limits. There was no basis to benefit from an extension of time.

The claim was out of time and the case should end there.  The Respondent submitted that the case could safely be decided on the preliminary issue, without recourse to the substantive issue.

In this, Counsel requested that the Adjudicator invoke Section 79(3A) (a) of the Act and investigate as a preliminary issue the compliance with statutory time limits, whilst reserving their position to make a direct appeal to the Labour Court under Section 77(12)

 12)(a) Not later than 42 days from the date of a decision of the Director General of the Workplace Relations Commissionon an application by a complainant for an extension of time under subsection (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal.

Counsel for the Respondent considered the adjudicators stated desire to press on and include the substantive case, whilst dissatisfied, accepted this approach.

Substantive case:

The Respondent operates a limited line food discount store across Ireland. It was common case that the complainant worked for the respondent 8 August 2017 to his resignation on 16 April 2022. The employment was supported by a contract and employee handbook, inclusive of an Equal Opportunities and Prevention of Discrimination Policy and Grievance procedure.

Counsel for the Respondent outlined that the company had struggled to secure a clear understanding of the claim for discrimination made by the complainant.

It was the respondent case that the October 19 grievance raised by the complainant had been upheld by Mr F, following meeting with the complainant and Mr A. This addressed both issues attributed to the dates of September 2 and 30, 2023 and was communicated to the complainant on November 16, 2020, as:

“Meeting of September 2, 2020

I uphold your complaint of mistreatment during the course of the meeting which took place when delivering a sick certificate on 2nd September “

Meeting of 30 September 2020

I uphold your complaint of mistreatment during the course of the meeting, which took place on September 30 arranged by your Area Manager in order to mediate and resolve issues arising from the meeting of 2 September.

“In the course of my investigation, Mr A stated that he regretted his behaviour and was sincerely apologetic. I believe that it would be appropriate for Mr A to extend this sincere expression of apology to you in person, and as such I would recommend it. I will organise this meeting and will also chair it should you wish ….”

Opportunity to appeal within 5 working days.

This was not appealed, and the company proposed Mr F to broker the next step in the process. The Complainant was not in favour of this approach but agreed to consider the offer and follow up was to occur within a week.

The Respondent was aware of the extended period of sick leave availed by the complainant from August 7, 2020, but this did not constitute a link to discrimination.

The Respondent was aware of the fallout from the complainant’s interaction with his Manager, Mr A but equally was aware of a long meeting held between the complainant and the Area Manager on 30 September 2020.

Mr F made multiple attempts to follow the complainant up via the phone on record, without success, before contacting him directly on the floor, seeking his response on 30 January 2021.

The Complainant phoned from a new number and refused the proposed meeting and confirmed that he was pursuing an equality complaint.

On February 2, 2021, the complainant forwarded an ES1 form to the Respondent. The Respondent has been on notice of the instant complaint from 13 April 2021.

The Complainant resigned his employment by phone on 4 April 2022.

Counsel contended that the complainant had not demonstrated that he has a disability within the meaning of the Employment Equality Act. In relying on Mitchell v Southern Health Board [2001] ELR 201, the respondent submitted that primary facts had to be of sufficient significance to raise an inference of discrimination.

It is sufficient that the presumption is within the range of inferences which can be reasonably drawn from the facts.

Cork City Council v Mc Carthy EDA 0821

Counsel submitted that the complainant had not identified the less favourable treatment to which he claimed he was subjected to by the Respondent. He has not made out a case on failure to provide reasonable accommodation.

Evidence of Mr F, Area Manager, 2020-2021

Mr F was directed to address the complainant’s grievance of 19 October 2020. This involved a formal investigation, where Mr F sought to establish the resolution sought by the complainant. He identified this as an apology for 2 and 30 September 2020.

Mr F confirmed that the complainant had not sought any specific reasonable accommodation, outside of an acknowledgement for his illness.

Mr F had identified that Mr A was very sorry and viewed that the relationship could be retrieved.

Mr F upheld the grievance and did not associate the complainant’s reaction to pressure as related to his illness. He had indicated that he was upset regarding a personal relationship.

Both he and another Manager had attempted to host an apology and Mr A was a willing participant for this, but the complainant was not enthusiastic. He followed up on 23 November and 1 December 2020, by text and phone, but there was no response. The matter was not overtaken by an appeal.

By January 27, 2021, when he was unable to obtain an answer, he contacted the shop phone.

The Complainant had been offered time off to address the grievance but had refused.

During cross examination, the Complainant put to that witness  that Mr A was not prepared to apologise to him. Mr F disagreed and pointed the complainant to the last paragraph of the outcome letter , which he said confirmed Mr As openness to this approach .

In closing remarks, Counsel for the Respondent concluded that the circumstances as described by the complainant amounted to an unfortunate experience which was subsequently channelled through a grievance.

Mr A had addressed the complainants walk out as a behavioural issue, which was unacceptable to the business and later resolved the matter. There was no bar to the complainant returning to work as he did in a supported vein on September 17.

Counsel submitted that there could be no inference raised from the facts that discrimination occurred in this case.

Mr A had overshared his own problems, but this is a very separate situation to discrimination. There was no causal link evident to discrimination.

Counsel for the Respondent submitted that the complainant had not attained the burden of proof necessary in the case. He had not made out a prima facie case of discrimination as the treatment in the workplace was not linked to his disability. He was not denied reasonable accommodation.

The grievance was taken seriously and investigated by Mr F and the complainant was offered a platform for a next step or the option of appeal remained live for him. Neither option was constructively pursued by the complainant.

This dispute involves a claim that the complainant  was discriminated against by the respondent on grounds of disability, within the meaning of section 6(2)(g) of the Employment Equality Act, 1998 and in contravention of section 8 of that Act in the course of two meetings on 2 September and 30 September 2020 . The Complainant has also submitted that he was not provided with reasonable accommodation under section 4 of the Act.

Preliminary Issue:

As I explained to both parties at hearing, it was my stated desire to conjoin the preliminary and substantive issues at hearing before applying the law to the facts as heard. I referred the parties to HSE v Dr Kevin Brogan EDA 1633 in that regard.

While I appreciate that there may be a distinction on the facts of that case in terms of the Courts view that the new pay scale had an enduring impact which led to the application of section 77 (6A) (i), the instant case has at its core 2 episodes of alleged discrimination accepted by the parties as having occurred on September 2 and September 30, 2020.

I remain guided by the Courts view in Brogan, that both preliminary and substantive cases should be heard at first instance.

Section 77 (6) follows this.

(6) At the conclusion of an investigation under this section (including an investigation of a preliminary issue under subsection (3) or (3A)), the Director General of the Workplace Relations Commission shall make a decisionand, if the decision is in favour of the complainant—

(a) it shall provide for redress in accordance with section 82, or

(b) in the case of a decision on a preliminary issue under subsection (3) or (3A) it shall be followed by an investigation of the substantive issue.

I must now consider the preliminary argument on statutory time limits made by the respondent and met with an application for an extension of time by the complainant for reasonable cause.

I must be satisfied that I hold the necessary jurisdiction to make a decision in this case.

Section 75 of the Employment Equality Act 1998, as amended explains my role.

7) Where, under subsection (4B)the Director General of the Workplace Relations Commission has delegated to an officer the function of hearing a case referred to the Director General of the Workplace Relations Commission under section 77 or 86, or under section 21 of the Equal Status Act 2000—]

(a) the delegation shall be taken to include the power to issue a decision in the case,

(b) the function may not be exercised concurrently by the Director General of the Workplace Relations Commission, and

(c) the delegation may not be revoked or varied except at the request of the officer to whom the function was delegated or if there are exceptional circumstances preventing that officer from acting (or continuing to act).

Section 77(5) (a) and (b) go on to explain the cognisable period permitted in which I can consider a claim.

(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.

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

The Respondent has submitted the claim is statute barred as the last reported date of alleged discrimination is September 30, 2020, over 6 months before the claim was registered at WRC on 7 April 2021. The Respondent has opposed the application to extend time to 12 months by reasonable cause.,

The instant complaint was received by the WRC on 7 April 2021. The Complainant gave evidence that this was his third attempt to place the complaint before the WRC. He did not exhibit remnants of these attempts outside of an email record from 2 April 2021.

I find it important to reflect the contents of this document.

Regarding my original complaint 42176 which was sent to you in time, I had to withdraw under the wrong legislation. I sent to you CA 43438 in its place.

During his evidence, the complainant mentioned that he had conflated complaints under both Employment Equality and Equal Status Acts in the second submitted complaint, which he made by post. I have taken this to be “42176” as outlined above and withdrawn on 2 April 2021.

I accept that the Complainant is a Lay Litigant and while he did endeavour to obtain representation to support him in his case, he confirmed that he was comfortable to present his case alone at hearing. I respected his decision in that regard.

The WRC placed the complainant on notice of a problem with time limits in this case as far back as 13 April 2021 , when the letter issued

An Adjudication Officer may not entertain a complaint if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. It would appear from the information submitted by you that this complaint does not fall within the 6-month statutory timeline.

However, an Adjudication Officer has the power to extend this time limit to a maximum of 12 months, if the complainant can demonstrate that the failure to comply with the 6-month time limit occurred as a result of reasonable cause.

If you consider that your complaint was presented within 6 months or that the failure to present the complaint within 6 months was due to reasonable cause, you may make a submission accordingly to the Workplace Relations Commission. Any such submission should be presented to the Commission within 14 days of the date of this letter. Should a response not be received by the Commission within that time, the Commission may assume that you no longer wish to proceed with this complaint.

The Complainant responded to this letter by the email outlined above. On the hearing day, he confirmed that he understood the statutory time limit associated with his complaint but pointed to the short gap in time from 29 March 2021 to 7 April 2021 as a ground to apply for an extension of time.

He also explained that he experienced some difficulty in the workplace during the cognisable period of the claim . The complainant confirmed that he had received advice from the WRC on submitting his complaints and understood from this that the extension of time would be applied . He submitted that he had been directed to withdraw the second complaint by the WRC and sought some understanding for this. He sought to be heard on the substance of his complaint .

I have considered all I heard from both parties on this issue . I have considered the written submissions.

The seminal decision on granting an extension of time for good reason in Judicial review proceedings was Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, which reflected proceedings pursuant to Order 84, Rule 21 of rules of Superior Courts 1986

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 clear that the test must be an objective one and the Court should not extend the time merely because the aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (what the plaintiff has to show … is that there are reasons which both explain the delay and afford a justifiable excuse for the delay

The Labour Court formulated a test for whether an extension of time should be granted in

Cementation Skanska v Carroll WTC 0338 in October 2003, approved in Minister for Finance v CPSU and ors [2007] 18 ELR 36 relied on by the Respondent in this case.

…. 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. Hence 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.

The grievance dated 19 October 2020 anchored the complainant’s stated unease with the workplace encounters of September 2020.

An investigation followed and culminated in a suggested action plan by the respondent on 16 November 2020. By then, the complainant had indicated that he was taking external advice in the case.

A lull followed, where the complainant transferred store and there were conflicted reports on whether contact was made by Mr F or not until the end of January. An extract of the ES1 form served on the respondent sought to expedite an apology from Mr A. I have not determined that this made its way to the WRC as a complaint , at that time .

I found this unusual as while I understand that the parties had separate phone numbers on record, the onus remained on the complainant whether he was accepting the contents of the November  11 grievance outcome or moving to appeal.

It is clear on the evidence that by early February 2021, the complainant had formed an intention of bringing his case before the WRC. This is what he communicated with Mr F as a reason to curtail any further involvement in the internal process.

He then experienced a difficulty as a lay litigant in submitting the complaint he wished to lodge and attributed his delay to advice received from the WRC that he was obliged to withdraw the “second complaint “

As the scribe of any complaint, and in the absence of a representative, it is important to reflect that the complaint form is taken as a letter of introduction by the reader. It is the personal responsibility of the scribe and while it is always useful to obtain advice, the facts of any case originate from the complainant and respondent experiences at work and are written in that vein. The parties own the case and as an Adjudicator, I manage its progression to hearing as delegated by the Director General.

Any application for an extension of time must be very carefully considered and Is not automatic .

The Labour Court considered an application for an extension of time in Ervia and Deaglan Healy in PWD 2020 and refused the application.

The Court does not accept that the processing of an internal grievance can be considered as a cogent reason which prevented the lodging of a complaint under the Act in time. The Court is of the view that the Complainant cannot circumvent the time limit set out in the Act by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. The Court addressed this issue in Brothers of Charity Services Galway v Kieran O’Toole [EDA 177] where it held: -

• “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.”

Furthermore, the Court cannot accept that there was any obligation on the Respondent to advise the Applicant of the statutory time limit provisions of the Act. The Applicant informed the Court that he had already put the Respondent on notice that he was considering such a course of action. The Court is of the view that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body, as held by the High Court in Minister for Finance v CPSU and Or’s,[2007] 18 ELR 36.The Court notes that even if it were to find that the complaint had been submitted to the correct service of the WRC on 12thOctober 2018, (and no such finding has been made) then it was still out of time, as the Applicant himself identified the contravention as occurring in March 2018.

Having regard to all the circumstances of this case the Court has come to the conclusion that the Complainant has neither explained the delay in initiating his claim nor has he put forward a justifiable basis upon which an extension of time could be granted in this case.

For me, the complainant was in full possession of the factors necessary to present his case from early February 2021. By that date, he was aware of the respondent response to his grievance for some time, from November 16, 2020. He had also obtained advice.

While his eventual complaint dated 7 April 2021 was an expansive document, it was not necessary to provide that level of particularisation at that time. Ballinamore House Nursing Home and Guinan EET 152

I cannot accept the complainant evidence that he was foiled by the advice received from the WRC to withdraw claim no 2. This was hearsay evidence and contrary to the paperwork which issued on 13 April 2021 when the shortfall in time limits was clearly flagged by the WRC  to both parties and a submission to address this shortfall requested.

I am satisfied that the complainant knew that he wanted to take a case by late January, early February 2021. He knew the Respondent position on managing a process of a proposed apology, which he had distanced himself from (notwithstanding the communication shortfall through phones and transfer of work location)

While I understand the delay before referring the case on 7 April 2021, I cannot agree that the complainant has satisfied the test in Cementation Skanska, in that he has not provided a justifiable excuse for the delay.

 Based on these circumstances and the applied tests, I find that I cannot grant the application to the complainant on this occasion to extend the time in accordance with Section 77 (5) (b) of the Act.

I find that the claims are out of time and statute barred. I lack the jurisdiction to progress further .

I find for the Respondent on this Preliminary issue and am thus precluded from considering the substantive case.

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under section 82 of the Act.

I have found that the claims as made are out of time and not acceptable for an extension of time under reasonable cause in Section 77(5)(b) of the Employment Equality Act, 1998. Cementation Skanska applied.

I am therefore without jurisdiction to move beyond a decision in this preliminary issue and am precluded from considering the substantive case.

Statutory time Limits. Preliminary Issue.