EDA2469

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033679 (CA-00044533-001).

BACKGROUND:

The Employer appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 11th October 2023. Labour Court hearings took place on 28th November 2024.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Westar Holdings limited against a Decision of an Adjudication Officer (number ADJ-00033679, CA-00044533-001) under the Employment Equality Act, 1998 (“The Act”) in relation to a complaint made a former employee Gerard Dowling. The Adjudication Officer found that Gerard Dowling was subject to discriminatory treatment on the grounds of age and disability and awarded €35,000 in compensation.

A hearing of the Labour Court was held in Dublin on 28 November 2024. The Court heard submissions and testimony from the parties in relation to the preliminary and substantive matters.

For ease, the parties are referred to in this Determination as they were at first instance. Hence, Gerard Dowling is referred to as “the Complainant” and Westar Homes Limited as “the Respondent”.

Preliminary Matter - Application for an Extension of Time

The Complainant’s employment was terminated on 14 August 2020. He lodged a complaint under the Act to the Workplace Relations Commission (WRC) on 9 June 2021. The Adjudication Officer, at first instance, granted an extension of time for reasonable cause to allow the Complainant’s complaint to be heard by the WRC.  The Respondent raises a preliminary matter in relation to the Court’s jurisdiction to hear the complaint on appeal having regard to the statutory time limits set down at Section 77(5) of the Act, which states 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 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.

Position of the Respondent

The Complainant waited approximately nine months after he was made redundant to make a complaint to the Workplace Relations Commission, which is three months outside the time allowed for a complaint.

The Complainant asserts that he was vulnerable to Covid 19 and did not have access to a means of communicating with his solicitors so that they could lodge the complaint on his behalf. It is alleged that he did not have a computer or access to emails and was in fear of going out to post things.

The Complainant in this case does not have a good or arguable case. The statutory obligation in terms of time limits remained unchanged during the Covid-19 pandemic. The Complainant had legal advice from at least the 6 November 2020 when his solicitors first wrote to the Respondent, less than 3 months after the alleged discrimination occurred.

No medical evidence has been proffered by the Complainant to support or corroborate any illness, hospitalisation or particular vulnerability to Covid 19 during the relevant period. Even if such vulnerability were sufficient evidence to ground an allegation of reasonable grounds, this would not provide an excuse for the delay. In Dublin City Council v Laurence A. Skelly DWT2 12, Hydraulic Hose Service Ltd t/a Pirtek v Cristian Balasa and Murphy v Citizens Information Call Centre Ltd UD 59/200 the Labour Court rejected arguments that medical conditions gave rise to the delay in lodging complaints.

The Complainant asserts that he was physically unable to attend his solicitor’s office due to genuine fears of contracting the Covid-19 virus were he to interact with other people. He further submits that he does not have an email address and is not well acquainted with communication through mediums such as zoom. The Complainant was generally contactable by mobile telephone and was in communication with the Respondent by email using his daughter’s email account.

There was no change in terms of the regular postal service or internet services both of which have remained in full operation throughout every stage of lockdown. The Complainant alleges that he could not avail of the postal service due to his vulnerability. No explanation is offered for his failure to ask someone else to post instructions or documents to his solicitor for him. Notwithstanding the foregoing, he did not need to send anything to his solicitors to give them the instruction to lodge a complaint.

The WRC complaint form is a simple and straightforward form that could be completed by an individual without the need for legal advice in a relatively short period of time. The information to be included in the complaint form could easily be related to his solicitor over the telephone without the need for a face-to-face meeting or access to a computer.

The Respondent referred the Court to Department of Finance v IMPACT [2005] E.L.R. 6, Cementation Skanska v A Worker WTC/03/44, Elephant Haulage Ltd v Juska EET082 in support of its position.

Position of the Complainant

The Complainant suffers from a chronic respiratory condition called Chronic Obstructive Pulmonary Disease (COPD). It is an inflammatory lung condition which causes the production of mucus, restricted airways and wheezing/coughing. In addition, it can give rise to an increased risk of other conditions. The Covid-19 pandemic gave rise to significant increased health risks for the Complainant.

It is fully accepted that the Complainant made initial contact with solicitors prior to the 6-month time limit ending, enabling the said firm to initiate correspondence with the Respondent. The Complainant argues that the periods of sickness relating to his COPD, against the backdrop of the Covid-19 pandemic, resulted in his not being able to fully receive legal advice, weigh up the lodging of a complaint and properly instruct his solicitors within the 6-month time limit.

The Complainant does not have access to his own email address, or computer software (or mobile applications) such as Zoom enabling face-to-face conference calls.

The Complainant was struggling with COPD during the relevant period, the consequences of which included hospitalisation on numerous occasions, recuperation at home and constant use of medications, including the daily use of a specialised inhaler. The Complainant suffered significant stress, anxiety, weakness and hardship as a consequence.

The delay in this case is not a lengthy delay in the ordinary course of legal delays. It importantly still comes within the additional six months within which an extension of time may be granted. It is the Complainant’s belief that he meets the threshold of a good arguable case and that the Respondent will not be able to point to any real (or specific) prejudice suffered by delay. Were it not for (or but for) the combination of the Covid-19 pandemic and the personal circumstances of the Complainant, on the balance of probabilities, the complaint would have been lodged in time.

The Complainant referred the Court to Cementation Skanska v A Worker WTC/03/44, Elephant Haulage Ltd v Juska EET082, A Claimant v A Government Department (DEC/E/2007/009) and DPP v X.Y. [2021] IECA 34 in support of its position.

Deliberation and Findings

The preliminary matter for determination by the Court is an application for an extension of time.

The Complainant lodged a complaint under the Act to the Workplace Relations Commission (WRC) on 9 June 2021. Therefore, the relevant period for consideration by the Court in assessing a contravention under the Act, having regard to the six-month statutory time frame set down at Section 77(5) of the Employment Equality Act, 1998 is the period from 10 December 2020 to 9 June 2021.

Should the Court find a reasonable cause for the delay in lodging the claim, the timeframe for considering when a contravention occurred can be extended from six months to twelve months. The Complainant in this case seeks an extension of the timeframe for lodging his complaint to twelve months. The application for extending time is made on the basis that his failure to present a complaint within time was due to reasonable cause.

The established test for deciding if an extension of time can be granted for reasonable cause is that formulated by this Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.  The test was set out 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.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. 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 was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

The burden of proof in establishing the existence of reasonable cause rests with the Complainant. To discharge that burden, and for this Court to grant an extension of time, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time. Finally, the Court must satisfy itself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

What happened to prevent the complaint being lodged within time?

Counsel for the Complainant submits that there was both a valid reason and a justifiable excuse for the delay in lodging the claim in circumstances where the Complainant had a medical condition which made him particularly vulnerable to Covid-19 and where he did not have access to a means of communicating with his solicitors so that he could fully receive legal advice, weigh up the lodging of a complaint and properly instruct his solicitors within the 6-month time limit.

It is submitted that illness related to the Complainant’s medical condition, together with his general vulnerability to the Covid-19 virus, prevented him from lodging his complaint to the WRC in time. However, no evidence was presented to the Court to support or corroborate his medical condition or to say how that medical condition or any related illness prevented the Complainant from lodging his complaint within the six-month statutory time limit.

The Court notes that the Complainant was in contact with his solicitors during the six-month statutory time limit period and that his solicitor wrote to the Respondent on his behalf. A letter dated 6 November 2020 was opened to the Court which confirms that the firm of solicitors was acting upon the instructions of the Complainant in relation to his former employment with the Respondent. In that letter queries are raised on behalf of the Complainant in relation to a shortfall in his redundancy payment and his selection for redundancy.

A further letter dated 26 January 2021 from the Complainant’s solicitor acknowledges receipt of replying correspondence from the Respondent. That letter sets out, inter alia, an assertion that the Complainant was unfairly selected for redundancy due to his age and illness, and it concludes by requesting the Respondent to make contact within ten days with a view to settling the matter as otherwise the Complainant’s solicitors would have no option but to submit a complaint to the WRC.

Having regard to the above correspondence it is clear that the Complainant had access to his solicitor during the relevant period and that his solicitor had taken instructions from him. In light of that fact, no adequate explanation was provided to explain why the Complainant, or his solicitor acting on his behalf, did not lodge a complaint within the relevant six-month statutory time limit given that the correspondence dated 26 January 2021 indicates an intention to do so. As a result, the Court cannot accept the assertion the Complainant was prevented from adequately instructing his solicitor during the relevant six-month statutory time limit.

In this case the Complaint was lodged to the WRC over nine months after the alleged contraventions under the Act. Where there is a long delay in lodging a complaint, the Complainant is under a greater onus to prove reasonable cause. As set out in Cementation Skanksa a short delay may require only a slight explanation whereas a long delay may require more cogent reasons to explain why the Complainant was prevented from lodging a complaint within the six-month time limit set out in the Act. In the Court’s judgment no valid explanation to properly account for the delay has been furnished that offers an excuse or explains the delay in lodging a complaint form to the WRC in June 2021. 

In all the circumstances, the Court finds that the Complainant does not meet the threshold outlined in Cementation Skanksa whereby the statutory timeframe within which he is permitted to refer his complaint under the Act can be enlarged for reasonable cause.

It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. While the reasons submitted by the Complainant in this case may explain the delay, the Court finds that they do not provide afford a justifiable excuse for the delay.

In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case. The Court cannot assume a jurisdiction which is not conferred to it. A failure on the part of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim. As a result, the Court finds that it has no jurisdiction to hear the complaint.

Decision

The Court finds that the reasons provided by the Complainant are not sufficient to demonstrate reasonable cause for the delay in filing his complaint with the WRC.  Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission and is accordingly statute barred. 

In these circumstances, the Court cannot proceed to hear the substantive matter.

Accordingly, the Court finds that the complaint is not well founded and that the Decision of the Adjudication Officer is set aside.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
AL	______________________
16th December 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Amy Leonard, Court Secretary.