Complainant

Respondent

Parties

Leticia Valeria  Villaca

Brown Thomas Arnotts Limited

Complainant

Respondent

Anonymised Parties

Representatives

  Self

Grace O'Malley 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-00062564-001

02/04/2024

The Complainant was employed by QED Agency and worked in Brown Thomas Arnotts Limited from 01/10/2019 until she resigned on 31/03/2021.  She was paid €12.70 per hour and worked a 35-hour week.  She submitted a complaint to the WRC on 02/04/2024.

The Complainant alleges that she was discriminated against during her employment on the grounds of disability.

The Respondent submits that the Complainant was formally employed by QED Agency and that her complaint is substantially out of time. As the Adjudication Officer does not have jurisdiction to hear the complaint the preliminary matter should be determined before that substantive case can be considered.

It was submitted on behalf of the Respondent that the Complainant was formally employed by QED Agency and her location was with the Respondent.  She resigned her position in January 2021.  The Complainant submitted her complaint to the Workplace Relations Commission on 02/04/2024 and the Respondent submits that there is no discretion under the Act for an Adjudication Officer to extend the time limit past the 6-month period unless “reasonable cause” is proved.

The Respondent refers to the case of Cementation Skanska v Carroll, DWT0338, where the Court outlined the test by stating:

“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 that 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 Respondent submits that it was the Complainant’s responsibility to submit the complaint on time or at the very least within a reasonably speedy timeframe.  The Respondent submits that the Complainant had not discharged the burden of proof that reasonable cause exists for an extension to the six-month deadline and accordingly, this case must fail.  The Respondent submits that as this case is clearly out of time and therefore the Adjudication Officer does not have the requisite jurisdiction to hear this complaint.  The substantive case should not proceed until this matter is determined.

The Complainant submits that she was hired by QED Agency Recruitment to work for the Respondent and commenced on 01/10/2021.  As an agency worker she is entitled to equal treatment and the same conditions of employment as if she was employed by the Respondent.  The Complainant submits that the Protection of Employees (Temporary Agency Work) Act, 2021 sets out the protection and safeguards against discriminatory treatment.

The Complainant acknowledges that there are time limits and she believes there are situations where the WRC can go beyond these to decide what is fair.  This complaint is not about a once off incident and as its effects are still ongoing this should be taken into consideration.

The Complainant confirmed that she resigned her position on 31/03/2021 and submitted her complaint to the WRC on 02/04/2024.

As the Complainant was not represented the Adjudication Officer explained the relevance of the preliminary points raised by the Respondent.  The Complainant also confirmed that she understood that a decision would be made by the Adjudication Officer in relation to the preliminary point in relation to timeframe and this would determine the position in relation to hearing the substantive matter.

CA-00062564-001:  

In this case it is accepted that the Complainant submitted her complaints to the WRC on 02/04/2024. There was no application for an extension of time made at that time.  This was a period of just over three years since she resigned her position on 31/03/2021.

The Respondent submits that the complaints are statute barred for the purpose of the Acts.  The Complainant explained that she did not submit her complaint on time due to her poor understanding of the English language and the fact that she was not familiar with how the WRC process worked.  The Complainant also stated that she could not find anyone who would assist her.  She also stated that the effects of the alleged discrimination were still affecting her and therefore the matter should be heard.

At the hearing the Complainant accepted that she was significantly out of time, and she confirmed that she understood that a decision on the preliminary matter would determine whether or not the substantive case would be heard.

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 outlined 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 and is therefore unable to satisfy the criteria of reasonable cause.

Her only explanations for delaying a reference to the WRC was that she was not proficient in the English language, and she did not understand how things worked in Ireland. While this is understandable, but it is 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-00062564-001: I have decided that I do not have jurisdiction to hear this complaint.

Discrimination.  Time limits. Preliminary matte.