Complainant

Respondent

Parties

Olivera  Tranpa

Maybin Support Services (Ireland) Limited

Representatives

Ms. Olga Shevchenko, Immigrant Advice Bureau

Mr. Dermot O’Loughlin, Alpha Employment Representation Services

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-00057821-001

20/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00057821-002

20/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00057821-003

20/07/2023

The Complainant commenced employment with the Respondent on 1st December 2020. The Complainant was a pert-time, permanent employee, in receipt of an average weekly payment of €348.18. The Complainant’s employment was terminated on 15th August 2022.

On 20th July 2023, the Complainant referred the present set of complaints to the Commission. Herein, she alleged that she had suffered discrimination on the grounds of gender, race and age whilst employed by the Respondent. While the Respondent denied these complaints on a factual basis, they submitted that the matter could not proceed in circumstances whereby it was referred outside of the statutory timeframe for such matters.

A hearing in relation to this matter was convened for, and finalised on, 27th October 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

In circumstances whereby the preliminary issue as to jurisdiction may be determinative of the entire proceedings, this will be considered in advance of the substantive matter.

By submission, the Complainant accepted that the complaint was referred in excess of six months, but fewer than twelve months, following the most recent date of discrimination or breach of the Acts.

In applying to have the cognisable period extended for the purposes of the impleaded Acts, the Complainant submitted that she was unaware of the requirements to refer the present complaint within the statutory timeframe. In this regard, she submitted that she was unaware of this requirement until such a time as she secured professional representation. In addition to the foregoing, the Complainant submitted that she was under significant pressure regarding other aspects of her employment during this time.

The Respondent submitted that the Complainant had not demonstrated “reasonable cause”. In these circumstances, they submitted that the matter had been referred out of time for the purposes of the impleaded Acts.

Section 77(5) of the Employment Equality Act provides that,

“(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.”

In addition to the foregoing, Section 6(6) of the Workplace Relations Act 2015 provides that,

“…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 6(8) provides that,

“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 test for establishing such for reasonable cause is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here the test was set out in the following terms:

“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 the more recent matter of Leon Kinsella -v- Anson Friend DWT209, the Labour Court described the test to establish reasonable cause in the following terms,

“It 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 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.”

Regarding the instant case, the Complainant has sought to extend the relevant period in accordance with the above-mentioned provisions on the grounds of “reasonable cause”. The Complainant’s application in this regard is grounded on the fact that she was unaware of the time limits for the referral of such complaints. While the Complainant did refer alternative complaints under other legislation, it is apparent that that she did not become aware of the requirements to refer under this legislation until such a time as she secured professional representation.

In the matter of Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that,

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

In the matter of Globe Technical Services Limited and Kristin Miller (UD/17/177), the Labour Court held that,

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

Having considered the Complainant’s submission in this regard, I cannot find cause to depart from this authorities or the well-settled legal principle involved. As a consequence of the same, I find no reasonable cause to extend the consignable period for the notification of the complaint.

Finally, as the complaint relates to an employment relationship as opposed to the provision of a service, I find that I have no jurisdiction under the Equal Status Acts.

CA-00057821-001 Complaint under the Equality Acts

In circumstances whereby no employment relationship existed during the cognisable period for the purposes of the present Act, I find that the Respondent did not discriminate against the Complainant during this period.

CA-00057821-001 Complaint under the Equal Status Acts

I find that the Respondent did not engage in prohibited conduct within the definition of the Act.

CA-00057821-003 Complaint under the Payment of Wages Act

I find that the complaint is not well-founded.

Reasonable Cause, Extension of Time, Delay