ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049694

Parties:

Complaint:

Date of Adjudication Hearing:  15/05/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and/or Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The complaint is that the Respondent discriminated against the Complainant in relation to access to employment on age grounds.   The complaint form indicated that the complaint was submitted under the Employment Equality Act 1998. 

Summary of Complainant’s Case:

The Complainant made written and oral submissions.  In summary and in his own words his case is as follows:

In March 2023 I was in the process of completing an application form for a part time position as an information officer with the North Leinster Citizens information Service. While completing the application form, I noticed that the eligibility criteria did not extend beyond a “normal retirement age in line with the state pension age”. There was no reason provided in the application or in the regulations governing recruitment of information officers as to why such a threshold in respect of recruitment was being set. When I queried my eligibility with the Citizens Information Service, the Regional Manager of the North Leinster Citizens Information Service, Mr Noel O’Connor advised by email dated 28th March 2023 advised that if I was to “apply for the role and be offered the job” that I would not be eligible to take up the position. I therefore did not see the point of completing the application and abandoned the process.

The grounds of my complaint are as follows: The Citizens Information Service failed to give adequate or just reason for the age threshold as set out by them in their rules and regulations governing the recruitment competition; The Citizens Information Service failed to have recourse to or recognise a comparator such as the civil service or the public service which would permit them to extend the age limits for recruitment to 70 years of age; The procedures governing recruitment to the Citizens Information Service are ageist. And I claim the following reliefs: That I be permitted to apply and considered for the next available part time position when same becomes available or Whatever sum as deemed appropriate by the Adjudicator in recompense for the discriminatory behaviour as outlined.

The Complainant gave sworn evidence.  He stated that following his communication with the Respondent and their reply that he was not eligible to apply for a post on age grounds, he could not get anyone to ‘call it out’.  He realised the situation was obviously discriminatory and ageist but could not get a satisfactory answer as to what way to proceed.  Then he saw newspaper coverage of certain successful cases and he realised he does have a case.  He pointed to various case law that indicated that if he has a good arguable case it should be allowed.

Summary of Respondent’s Case:

The Respondent advertised for a role vacancy within its organisation. The role was that of part time Information Officer. The advertisement went public on 27 March 2023.

The Claimant sent an email dated 27 March 2023 to the Respondent’s dedicated recruitment email address stating:

“I note that your recent advertisement for recruitment of a part time Information Officer advises that: "Citizens Information has established a normal retirement age in line with the state pension age......" I'm recently retired from the civil service where the upper age limit on retirement is 70. I turned 66 last January - am I ineligible to have my application for the position of Information Officer considered? If so, are there any similar positions in a voluntary role available?

The Respondent’s Regional Manager replied by way of email dated 28 March 2023 wherein he stated: “The current retirement age in the Citizens Information Service is 66 so if you were to apply for the role and be offered the job, and you were over that age you would not be eligible to take up the position. Currently we do not have vacancies for volunteers to deliver our services but hope to be recruiting for this in the second half of the year. When this recruitment happens, notices will be placed online. We are currently recruiting volunteer directors and information on that campaign, can be found HERE.”

The Claimant sent an email to the Respondent’s Regional Manager dated 22 December 2023 wherein he stated: “In accordance with the procedures required by the Workplace Relations Commission (WRC) I hereby give notice of my intention to bring a complaint against the Citizens Information Service for discrimination on the grounds of age and for refusal by the Citizens Information Service to consider my application for employment with them on a part time basis. Your email to me on 28th March last refers. At present, my complaint is outside of the time limits but I will be seeking an extension of time to file due to the extenuating circumstances and the recent developments in age related case law. If my complaint is accepted by the WRC, more complete details will be made known to the Citizens Information Service by the WRC in due course.

It appears that the Claimant then posted his complaint form to the Workplace Relations Commission (the ‘WRC’) in or about 28 December 2023 and the WRC received same on 2 January 2024.

The accompanying letter dated 28 December 2023 states: “I regret the lateness of my complaint but this was due in part to a mistaken belief that the form had been already submitted online through the complaint platform on the WRC website. On two recent attempts, on November last and earlier this month the dialogue box on the form had populated as “SUBMITTED” even though the form had not in fact been received by the WRC. I would also request that further consideration be given to recent developments in the type of discrimination that I am alleging and that this (I would respectfully submit) would assist in bringing my complaint back within the time limits allowed.”

The complaint form seeks redress for discrimination pursuant to section 77 of the Employment Equality Act 1998 (as amended). The most recent date of discrimination is identified by the Claimant in his complaint form as being 28 March 2023.

Despite the complaint form seeking redress for discrimination pursuant to section 77 of the Employment Equality Act 1998 (as amended), the Hearing Notice for the complaint states that the Claimant is seeking redress pursuant to section 21 of the Equal Status Act 2000 (as amended).

Complaint out of time

The Respondent submits that the Claimant’s claim, whether pursuant to the Employment Equality Act 1998 (as amended) or the Equal Status Act 2000 (as amended), is manifestly out of time and therefore the WRC does not have jurisdiction to hear this claim. The Respondent respectfully requests that before proceeding with the substantive hearing on this matter, the Adjudication Officer should rule on this preliminary issue. It would be grossly unfair on the Respondent to have to defend a full case under the equality legislation in circumstances where the claim is clearly time barred. Furthermore, there is jurisprudence which suggests that an Adjudicator is precluded by law from holding a substantive hearing until a decision on the preliminary matter is reached. Finally, it appears from the correspondence from the Claimant to date that he is holding off from submitting documentation/legal submissions in respect of the complaint until he finds out if the WRC is accepting jurisdiction to hear the matter.

Case law in support was cited, including:

In Bus Eireann v SIPTU PTD048/2004 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’. In the index proceedings, there would be a considerable saving in both time and expense as the valuable resources of the WRC would not be wasted on an unnecessary substantive hearing and, furthermore, the preliminary issue raised by the Respondent is purely a legal question and no evidence or further information is required to determine same.

Other cases referred to included:

Donal Gillespie and Donegal Meat Processors UD/20/135, Kevin Stapleton v Acushla Ltd ADJ-00037399 (2023), Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014

Section 79(3A) of the Employment Equality Act 1998 (as amended) states that

“If, in a case which is referred to the Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

• (a) whether the complainant has complied with the statutory requirements relating to such referrals

… (d) any other related question of law or fact,

the Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.”

Accordingly, the Respondent asks that the Adjudication Officer make a determination on the issue of jurisdiction having regard to submissions made on the preliminary issue without proceeding to engage with the substantive matter.

Findings and Conclusions:

Time Limit for presenting the complaint

Section 41 (6) of the Workplace Relations Act 2015 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after 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”.

In this case the alleged act of discrimination when the Complainant was prevented from applying for a position due to his age occurred on 28 March 2023.  His complaint was received by the WRC on 2 January 2024, some 9 months later.      

The Complainant sought an extension of time. 

It is noted that the accompanying letter to WRC dated 28 December 2023 states that the Complainant attempted to submit his complaint in November 2023 and the form had not been received.  He also sought that further consideration be given to recent developments in the type of discrimination that he was alleging and that this would assist in bringing his complaint back within the time limits allowed.

It is well established that Cementation Skanska Ltd v Tom Carroll DWT0338 is the seminal case in deciding the issue.  In that case, the Labour Court provided its view of the standard that should be applied in applications for time extensions under the grounds of “reasonable cause” when the Court stated:

‘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.’’

In Salesforce.com v Leech EDA1615, the Labour Court applied a 3 tier test in relation to the issue:

1. The onus is on the applicant to identify the reason for the delay and to establish that the reason provides a justifiable excuse for the delay
2. The onus is on the applicant to establish a causal connection between the reason and the failure to present the complaint on time
3. The complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.

The Court held that while the test imposes a low threshold of reasonableness on the applicant, there is a limitation on the range of issues which can be taken into account.  In O’Donnell v Dun Laoghaire Corporation [1991] IRLM 30, Justice Costello found that 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 this instant case, there are a number of matters to be examined.

Had the Complainant succeeded in his attempts to lodge his complaint in November 2023 he would still be out of time.  

He stated that when he was informed that he could not apply for the job, he could not get anyone to ‘call it out’ or give him advice.  Then he referred to ‘recent developments’ when he saw newspaper coverage of successful age discrimination complaints.

The Respondent operates a ‘normal retirement age’ in line with the State pension age of 66.  The comparison with the Public Sector may not be valid.  While I have sympathy with the Complainant’s position, I must also consider if the Complainant has a good arguable case.  In this case, as the comparable situation may not stand up, there is a possibility that he does not have a good arguable case. 

I find there was no actual impediment to the Complainant which prevented him in presenting his complaint within the time period, and I therefore find the complaint to be out of time.

The complaint is out of time and not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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

I have decided that the complaint is out of time and not well founded.

Dated:   12th July 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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