Complainant

Respondent

Parties

Ann  Munoz

Awp  Health & Life Spa Allianz Partners

Representatives

  Megan McGreal, B.L.

Ciaran Loughran, Ibec

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-00053219-001

12/10/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00053219-002

12/10/2022

The complainant alleges that she was unfairly selected for redundancy by the respondent.  She was employed from 01/09/2008 until 30/11/2021.  Her role was Technical Specialist Quality Auditor.  Her monthly gross pay was €3,858. She is seeking reinstatement.  

The complainant submitted her complaint to the Workplace Relations Commission (WRC) on 12/10/2022.  The complainant also submitted a complaint seeking adjudication under section 7 of the Employment Equality Act.  The complainant submits that she was discriminated against on the grounds of age and disability.

The respondent denies that the complainant was unfairly dismissed by reason of redundancy and further denies that she was discriminated against on the grounds of age or disability.

The respondent raised a preliminary matter in relation to the complainant’s failure to lodge her complaints within the timeframes prescribed in the Acts. The submissions of the parties in relation to these matters are outlined below.

PRELIMINARY MATTER: CA-00053219-002

It was submitted on behalf of the respondent that the complainant was dismissed by reason of redundancy on 30/11/2021 and she submitted her complaint to the WRC on 12/10/2022.  This is clearly outside the timeframes laid down in the Acts.  The complainant has not provided any evidence to show that the timeframe could be extended due to “reasonable cause”.  The respondent argues that a decision on this matter should be made before considering the substantive matter. 

In the case of Bus Eireann v SIPTU PTD 8/2004 the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required”.

The respondent provided the hearing with a detailed written submission on this matter including a number of relevant cases.

PRELIMINARY MATTER: CA-00053219-001

The respondent submits that the complainant also filed this complaint with the WRC on 12/10/2022 and her employment was terminated on 30/11/2021.  This complaint should have been submitted within the period of six months beginning on the date of dismissal. 

The respondent relies on the case of Cementation Skanska Ltd v Carroll DWT0338 where the Labour Court provided its view of the standard to be applied under the grounds of “reasonable cause”.  The complainant in this case has not provided any evidence to meet this standard and merit an extension of time and therefore the case must fail.

PRELIMINARY MATTER: CA-00053219-002

The complainant submitted that she understood that her legal representative at the time of her dismissal by reason of redundancy had submitted her complaints to the WRC.   When she discovered that this had not happened, she then submitted the complaints herself.  She understood that that there could be some flexibility in relation to the timeframes.

The complainant’s current legal representative stated that she had only recently come on record and did not have an opportunity to undertake a comprehensive review of the complaints.  She accepted that she accepted the facts as presented showed that the complaint was not submitted on time.

PRELIMINARY MATTER: CA-00053219-001 

A request was made on behalf of the complainant to consider the second complaint under the Employment Equality Act and the complainant, and her representative were given a period of time to review the respondent’s submission on this matter.

It was submitted on behalf of the complainant that she had engaged the services of a solicitor who was dealing with her complaints.  The complainant understood that the complaints were submitted, and she spent a lot of time trying to get definitive answers from her solicitor.  It is accepted that this complaint is also out of time.

CA-00053219-002:  It is not disputed that the complainant’s employment ended on the 30/11/2021. It is also not disputed that this is the relevant date of contravention for a complaint pursuant to the 1977 Act.

Section 8(2) of the 1977 Act provides:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 the Director General —

(a) within the period of 6 months beginning on the date of the relevant dismissal, or             

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause, and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.”

‘Reasonable cause’ in section 41(8) of the Workplace Relations Act is worded slightly differently and provides in the relevant part:

‘(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.’

The difference in wording of both provisions is the 1977 Act refers to the complainant being ‘prevented due to reasonable cause’, while the Workplace Relations Act refers to ‘due to reasonable cause’ and makes no reference to prevention. It is noted that the relevant test in both Acts is that of “reasonable cause”.

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) where the Court held:

‘It is the Court's view that in considering if reasonable cause exists, it is for the Complainant 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 Complainant at the material time. The Complainant’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 Complainant 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. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the Complainant has a good arguable case.’

The Complainant referred her claim to the WRC on the 12/10/2022, outside the 6-month time limit as provided for at Section 8 (2) (a). The time limit may be extended up to 12 months where I am satisfied that there was reasonable cause for not submitting the claim within the 6-month time limit.  It is noted that the claim was referred after 10 months and 12 days after the termination of the Complainant’s employment.

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. 

I appreciate that the complainant may have suffered much distress in the aftermath of her redundancy.  However, I also note that she availed of legal advice at that time.  However, in the circumstances of this case I cannot find that she has not satisfied the test for establishing reasonable cause as required under Section 8(2) (b) of the 1977 Act. I am also satisfied that the complainant has not provided cogent reasons which would determine that there was reasonable cause for the delay in submitting the complaints.

I find that I do not have jurisdiction to hear this complaint.

CA-00053219-001 :  Section 77 of the Employment Equality Act [1998-2022] provides as follows in relation to the time limit for making a complaint to the WRC. A similar provision is contained in Section 41(6) of the Workplace Relations Act [2015 - 2021]:

“77. A person who claims—

(a)   to have been discriminated against or subjected to victimisation……

(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.

(5)(b) On application by a complainant Director General of the Workplace Relations Commission……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 test to be applied in extension of time applications under the Acts, is that formulated by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll (DWT0338) [previously cited above] and in other cases.

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

“It is clear from the authorities that the test places the onus on the applicant for 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 applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.  Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint 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. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a  claim that those factors were the actual cause of the delay.

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 O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, 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.”

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said in Department of Finance v IMPACT [2005] E.L.R. 6.  that it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it.  This imports a clear objective standard into the test.

The complainant has not come close to this threshold.

Her only excuse for delaying a reference to the WRC was that she thought her then solicitor had submitted her complaints. This is understandable, but not sufficient to ground the extension she seeks to bring her complaint within jurisdiction, and she must accept the consequences of her decision not to submit her complaint in time.  I do not have jurisdiction to hear this complaint.

CA-00053219-001: I have decided that I do not have jurisdiction to hear this complaint.

CA-00053219-002: I have decided that I do not have jurisdiction to hear this complaint.

Timeframe.  Reasonable cause.