Complainant

Respondent

Parties

Lucie  Pierredon

SFDC Ireland Ltd. Salesforce

Complainant

Respondent

Parties

Lucie Pierrendon

SFDC Ireland Ltd (Salesforce)

Representatives

  self

 Mason Hayes & Curran/Mark Curran BL

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-00052200-001

11/08/2022

It is alleged that Salesforce promotes employees twice yearly, on the 1st of February and the 1st of August. The Complainant believed that a representation made prior to her going on maternity leave meant that she would be actively considered for promotion. When she hadn’t been promoted while on maternity leave and sought an answer. The Complainant contends that she was excluded as she couldn’t take up the senior manager role effective the 1st of February 2021 as she was on maternity leave and that was clearly discriminatory. She contends that this reason was communicated to her my email and is proof of discrimination.

The discrimination is ongoing. The Complainant only returned to work in October 2021 and the discrimination continued as she was precluded from being considered for promotion as she was unable to take up the role at the said dates being the 1st of February and the 1st of August 2021 because she was on maternity leave.

The Company resigned to take up employment with another company. The complaint is manifestly out of time by several months.

Extension of time

I note in Regan 2nd Ed Employment Law (Bloomsbury 2017) at Anthony Kerr SC states at 28.24:

“The case law of the Labour Court demonstrates that, with the exception of employment equality cases, a complainant must not only show that ‘reasonable cause’ was present but also that it prevented or inhibited the timely presentation of the complaint.

I also note that:

“Section 77(5)(b) of the 1998 Act does not require that the reasonable cause prevented the claim from being lodged within the initial period.”

I also note that at 28.23:

“s 77(5)(b) of the Employment Equality Act 1998 empowers the Adjudication Officer, for reasonable cause, to direct that a period not exceeding 12 months be substituted for the six-month period  stipulated in para (a).

S 77 (5) states:

“(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 F119[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.”

Cementation Skanska v Caroll DWT1017/2013 is the leading case cited relating to the threshold that the Complainant must meet when relying on reasonable cause to explain the delay.

“…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 [or she] would have initiated the claim in time.”

The facts in this case relevant to time limits are:

1.       The form was lodged with the Commission on the 11th of August 2022.

2.       The Complainant’s employment ended on the 31st of December 2021.

3.       On the Complaint form the most recent date of discrimination was the 4th of February 2021.

4.       At the hearing, the Complainant stated that the discrimination was in fact ongoing.

Without prejudice to the merits of whether discrimination did or did not continue until the date that the employment ended on the 31st of December 2021, the most favourable interpretation where continuing discrimination was accepted as a possibility, would mean that the complaint should have been lodged no later than the 30th of June 2022.

The Complainant stated that she delayed lodging her complaint initially for fear of not being promoted after returning to work from maternity leave and then resigned at the end of 2021 to advance her career elsewhere. Only after considering the Company’s representations concerning how equally, they treat their employees, especially during maternity leave posted on LinkedIn during 2022, she felt she must lodge her complaint as she took issue with that assertion.

On these facts I determine that the Complainant has not provided a reasonable cause to explain the delay. The Complainant has not presented a causal link between the circumstances cited and the delay. The test is an objective one.

In Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:

In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he 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 that 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 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. 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 his 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] I.R. 181)."

The test is an objective one and importantly the case law requires that 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.

On the facts presented at the hearing the Complainant has not made out a reasonable cause to explain the delay and arising from this conclusion I must find that time cannot be extended. I determine that the complaint is out of time.

Section 77 A states that:

77A.—(1) The Director General of the Workplace Relations Commission] may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commission] dismisses a claim under this section, the complainant 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.

(b) On the appeal the Labour Court may affirm or quash the decision.

These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

As no reasonable cause has been made out so that time could be extended, I find that the complaint was lodged out of time and therefore I have no jurisdiction to hear the complaint.

As I have formed the opinion that the complaint has been made out of time; therefore, the matter is legally misconceived, and I dismiss the Complaint.

On the facts presented at the hearing the Complainant has not made out a reasonable cause to explain the delay and arising from this conclusion I must find that time cannot be extended. I determine that the complaint is out of time.

As no reasonable cause has been made out so that time could be extended, I find that the complaint was lodged out of time and therefore I have no jurisdiction to hear the complaint.

As I have formed the opinion that the matter is legally misconceived arising from being out of time, I dismiss the Complaint.

Out of time