Complainant

Respondent

Parties

Peter  Gaal

Apple Distribution International Limited

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

David Pearson of  J.W. O'Donovan 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-00062554-001

02/04/2024

The Complainant commenced employment with the Respondent on the 29th May 2023. He was employed as an Annotation Analyst until his employment ended on the 5th October 2023. He referred a complaint to the Workplace Relations Commission (hereinafter referred to as “the WRC”) on the 2nd April 2024 wherein he claimed that he was discriminated against on the ground of gender. The Respondent denied that it discriminated against the Complainant on the gender ground or at all. By way of a preliminary issue the Respondent submitted that the complaint was referred to the WRC outside of the statutory time frame.

The Complainant did not seek an extension of the time limit in which to refer his complaint and stated that he had nothing to say in response to the Respondent’s preliminary objection.

The Complainant gave evidence that he was discriminated against on the gender ground throughout the investigation process which concluded on the 21st September 2021. The Complainant stated that he wanted to point out inaccuracies of the investigation process and his concerns regarding the manner in which the Respondent handled private information and that his complaint related to the handling of the investigation process by the Respondent and the lack of fair procedures.

By way of preliminary objection the Respondent submitted that the Complainant’s complaint under the Employment Equality Act 1998 is statute barred on the basis that the Complainant was notified on the 21st September 2023 that following the investigation process it had been decided to terminate his employment for not successfully passing his probation. The Complainant was informed that his employment would terminate on the 5th October 2023 and that he would be paid during the two week notice period but not required to attend work. The Complainant did not attend work after the 21st September 2023 and was effectively placed on garden leave. The Complainant submitted his WRC complaint form on the 2nd April 2024, 6 months and 12 days after garden leave commenced.

The Respondent referred to section 77(5) of the Employment Equality Act 1998 (as amended) and submitted that as the Complainant was placed on garden leave and did not attend work after the 21st September 2023, he is out of time to refer his complaint with the WRC. Additionally, the Complainant has not applied to the WRC for an extension of time for the consideration of his complaint.

Without prejudice to the Respondent’s submission that the complaint is statute barred and in the event it is determined that the Complainant’s failure to present his complaints within the statutory timelines was due to reasonable cause, the Respondent fully denied that the Complainant was discriminated against by the Respondent and in particular it denied that the Complainant was discriminated against by reason of gender and that he was discriminatorily dismissed. The Complainant’s employment was terminated due to him not meeting the standards of conduct required by the Respondent for all employees during the probationary period. The Complainant was informed of same in writing on the 21st September 2023, placed on garden leave and paid until the 5th October 2023.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

The Law:

Preliminary Decisions:

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242 and Hardiman J. in B.T.F. v. Director of Public Prosecutions [2005] 2 I.L.R.M. 367. In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded.”

In Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal, UDD2114, the Labour Court noted that, seeking for the substantive issue and the jurisdictional issue to be dealt with together was:

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

Following the caselaw outlined above I find that there is a “strong case” for determining this matter by way of preliminary decision.

Preliminary Issue: Time Limits

The first matter I must decide is whether the complaint was referred within the statutory time limit set out in the Act.

Section 77(5) of the Employment Equality Act 1998 (as amended) (hereinafter referred to as “the 1998 Act”) states:

(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 well-established test for granting an extension of time for reasonable cause is set out in the Labour Court decision of Cementation Skanska (formerly Kvaerner Cementation) v. Carroll (DWT0338) wherein the Court held:

 “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 O’Donnell v. Dun Laoghaire Corporation [1991] 1 ILRM 301 at 315 Costello J in the High Court construed the term “good reasons” 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 was justified in delaying the institution of proceedings. What the plaintiff has to show … is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v Brennan [1981] IR 181).”

The test is an objective one and the onus is on the Complainant to identify the reasons for the delay and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of “reasonable cause”.

In the narrative on the WRC complaint form the Complainant stated that he was discriminated against on the ground of gender. While the Complainant did not set out the date of occurrence of the discrimination or the date of the most recent occurrence of discrimination, he stated in evidence that his complaint was in relation to the manner in which the allegations levelled against him were investigated by the Respondent and the manner in which the Respondent handled the investigation process which concluded on the 21st September 2023 when he was informed, following his probationary review meeting on the 18th September 2023, that his employment was being terminated on the basis that he had not successfully passed his probation.

I find that based on the Complainant’s own evidence no incident of alleged discrimination occurred after the 21st September 2023. In circumstances where the complaint was not referred to the WRC until the 2nd April 2024 I find that the complaint was referred outside of the 6 month time limit as set out in section 77(5)(a) of the 1998 Act.

Section 77(5)(b) of the 1998 was explained to the Complainant. The Complainant did not make an application pursuant to section 77(5)(b) of the 1998 to extend the time period. The Complainant stated that he did not have anything to say in reply to the Respondent’s submissions that the complaint under the 1998 Act was referred to the WRC outside of the statutory time limit.

Whilst I note the matters set out in the final paragraph of the narrative on the WRC complaint form and in the documentation furnished by the Complainant to the WRC in advance of the hearing, I find that despite being given the opportunity to do so the Complainant failed to identify any  reasons for the delay in referring his complaint to the WRC and to establish that the reasons relied upon can both explain and excuse the delay which satisfies the test of reasonable cause.

I therefore find that the Complainant has not established that he was prevented from referring his complaint within the time limit due to reasonable cause. Accordingly, I find that I do not have jurisdiction to determine this case under the 1998 Act as it was not referred within the required time period and the Complainant has not established that he was prevented from doing so due to reasonable cause as per section 77(5)(b) of the 1998 Act.   

For the reasons set out above I decide that this complaint was referred outside the statutory time frame pursuant to section 77(5)(a) and (b) of the Employment Equality Act 1998 (as amended) for referring a complaint to the Director and therefore I have no jurisdiction in the matter. 

In the circumstances the complaint is not well founded.