ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00030861

Complaint:

Date of Adjudication Hearing:  05/01/2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint under Section 77 of the Employment Equality Acts 1998-2015 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 6th November 2020.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I heard this complaint by remote hearing on 5th January 2023 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020.  The Respondent was represented by an In-house Lawyer and the Complainant was self-represented.  A HR Manager and Manager attended on behalf of the Respondent to speak to the underlying HR process.  At the outset, the legal requirements for this complaint and changes to procedure under the Workplace Relations (Miscellaneous Provisions) Act 2021 were outlined.  The hearing was held in public, evidence was taken on oath and the Parties were afforded an opportunity to cross-examine each other.  As this complaint had been referred outside of the six-month time period, a preliminary objection to the WRC’s jurisdiction and/or grant of an extension of time was raised on behalf of the Respondent.  Both Parties proffered submissions and supporting documentation in relation to the preliminary issue and substantive complaint.  I heard all of the evidence as being necessary to determine both the preliminary issue and substantive complaint.  Post-hearing efforts to resolve the matter were recently confirmed as being unsuccessful and a decision is now required.  All the evidence, documentation and submissions proffered herein have been fully considered.  As this complaint contains sensitive medical information, I have exercised my discretion to anonymise this decision.

Preliminary Issue: 

Factual Background:

By way of background, the Complainant commenced employment with the Respondent, an international information technology company, as a Programme Trainer on 10th July 2017.  He is of Nigerian nationality and black African race.  He referred this complaint of discrimination and harassment on the ground of race under Section 77 of the Employment Equality Acts 1977-2015 on 6th November 2020.  In his complaint form, he indicated that the most recent date of discrimination was 27th March 2020.  In the body of the complaint form, he detailed four specific incidents of alleged discrimination and/or harassment by his Former Line Manager, namely on 5th October 2018, an unknown date in July 2019, 23rd March 2020 and 3rd April 2020.  He also referred to an incident involving another employee in November 2019 which had been addressed informally.  He had filed a grievance in relation to the same subject-matter via the Respondent’s Grievance Procedures on 24th April 2020.  There was an extensive investigation as evidenced by the copious documentation submitted wherein at least ten named persons including the Complainant and his Former Line Manager were interviewed.  Whilst the earlier incidents were not upheld, the Investigator found that comments made to the Complainant by his Former Line Manager during an instant messenger exchange on 3rd April 2020 were not in keeping with company standards.  It was further held that they were not racist.  The Former Line Manager was required to attend training including cultural sensitivity communication, management communication and leadership communication which he completed on 4th August 2020.  The Complainant’s team was also reorganised such that he would no longer have to work under his Former Line Manager and they have had limited contact in the interim.  The Complainant had been offered counselling under the Respondent’s Employee Assistance Programme which he had declined as he had his own counsellor.  He was unhappy with the outcome and after an exchange with HR, was permitted a late appeal which was upheld on 24th July 2020.  Although dissatisfied that his Former Line Manager had been interviewed as opposed to being required to provide a statement, the Complainant did not raise any issue of racial discrimination or harassment in relation to the investigation process.  In terms of remedy sought, the Complainant confirmed that he had only ever required an apology from his Former Line Manager.

Summary of Respondent’s Case:

On behalf of the Respondent, it was submitted that the Complainant had not referred this complaint within the requisite six-month time period under Section 77(5) of the Employment Equality Acts 1998-2015 and thus the WRC had no jurisdiction.  It was contended that if the most recent date of alleged discrimination had occurred on 27th March 2020, this complaint should have been referred by 26th September 2020 or if taken from the date of the last alleged incident on 3rd April 2020, by 2nd October 2020.  With a referral date of 6th November 2020, this complaint was out of time by either six weeks or five weeks respectively. 

It was further submitted that there was no reasonable cause for granting the Complainant an extension of time under Section 77(5)(b) of the Employment Equality Acts 1998-2015.  In this respect, it was confirmed by the HR Manager and accepted by the Complainant that save for 2.5 days absence, he had attended work for the totality of this period and had also been engaging in coherent detailed email exchanges with HR regarding this matter.  In this respect, reference was made to lengthy email exchanges between the Complainant and HR on dates between April and July 2020 as submitted herein.  It was also pointed out that vouching provided referred to appointments for routine medical tests, primarily outside of the referral period in question.  Without prejudice, a detailed submission on the substantive complaint was made contending that the Complainant had not made out a prima facie case of discrimination requiring rebuttal and/or relying upon the defence provided by Section 15(3) of the Employment Equality Acts 1998-2015. 

Summary of Complainant’s Case:

The Complainant stated that the delay in referring this complaint to the WRC and particularly after the conclusion of the internal grievance process at the end of July 2020 was due to his anxiety and depression.  He had been prescribed antidepressant medication and also had to undergo several blood tests, scans, and doctor’s visits.  He maintained that he had to continue working for financial reasons but had been “physically and mentally helpless” and “unable to communicate with anyone”.  His work had suffered and he also had to undergo counselling which had given him the strength required to refer this complaint to the WRC.  He submitted that these circumstances constituted reasonable cause for granting an extension of time.  In support of this application, he submitted a number of letters confirming medical appointments in 2020, 2021 and 2022 and attendance at counselling between June 2020 and February 2021.

Findings and Conclusions:

In order to determine whether to consider the Complainant’s application for an extension of time, it is firstly necessary to set out the relevant statutory provisions and caselaw in relation to time limits:

Section 77(5) of the Employment Equality Acts 1998-2015 provides as follows in this respect:

“(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 Commissionor 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.”

The well-established test as to what constitutes ‘reasonable cause’ for the purposes of an application for an extension of time to refer a complaint to the various employment fora is set out in Cementation Skanska -v- A Worker DWT0425 & Department of Finance -v- Impact (2005) ELR 6: “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 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 claimant has a good arguable case.”

In the instant case, it is not in issue that the most recent date of alleged discrimination / harassment on the ground of race was 3rd April 2020 as contained in the body of the complaint form, albeit that the Complainant had also referred to 27th March 2020 as being the most recent date.  Accordingly, this complaint was referred to the WRC pursuant to Section 77 of the Employment Equality Acts 1998-2015 on 6th November 2020, some five weeks outside of the requisite six-month time limit provided by Section 77(5) of the Employment Equality Acts 1998-2015.  I have carefully considered the basis proffered by the Complainant for granting an extension of time, being that he was suffering from anxiety and depression.

As the Complainant was engaging in an internal grievance process with the Respondent between 24th April 2020 and 24th July 2020, I am prepared to disregard this period whilst noting that engagement in internal procedures does not of itself stop the clock in relation to time limits.  I shall now turn to consider the remainder of the period until 6th November 2020.  Having considered all of the evidence and vouching proffered, I am not satisfied that there is a causal link between the circumstances cited i.e. anxiety and depression and the delay in referral such that as a matter of probability, had those circumstances not been present, the Complainant would have initiated this complaint in time for the following reasons:

(1)  It is apparent from the copious documentation submitted that the Complainant had been engaging in detailed email exchanges with HR up until the end of July 2020 including whilst attending for counselling.  There was no evidence that anything had changed in the ensuing period until the date of referral on 6th November 2020 that would have deterred the Complainant from referring a complaint to the WRC.

(2)  The vouching provided consists of appointment letters for routine medical tests primarily falling outside of the period between 25th July 2020 and 6th November 2020 with the majority dated 2021 and 2022.  Notably, there was no medical certificate confirming that the Complainant was unfit in any way for the requisite period.  In the absence of any certification, I do not accept his contention that he was able to attend work for the period in question whilst not being well enough to refer this complaint to the WRC.

Having so found, it is unnecessary to set out the evidence in relation to the substantive case in more detail.

Decision:

Section 77 of the Employment Equality Acts 1998-2015 requires that I make a decision in relation to this complaint.  Section 79(3A) of the Acts provide for the investigation and determination of preliminary issues “where 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,…”  For the aforesaid reasons, I determine pursuant to Section 79(3A) that I do not have jurisdiction to entertain this complaint as it has been referred outside of the requisite six month time limit and the Complainant has not shown reasonable cause for extending time. Accordingly, this complaint fails.

Dated: 27/05/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Complaint of discrimination / harassment on ground of race - out of time - whether reasonable cause for grant of extension of time - Section 77(5) of the Employment Equality Acts 1998-2015