Complainant

Respondent

Parties

Paulo Andre  Simoes Lopes

Smartbox Group Limited [amended on consent at hearing]

Representatives

Self-Represented

Mr John Lynch Whitney Moore LLP

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-00065207-001

05/08/2024

This matter came before the WRC dated 05/08/2024 as a complaint submitted under section 77 of the Employment Equality Act, 1998.  The Complainant alleges a contravention by the Respondent of provisions of the above listed statute in relation to his employment with the Respondent.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 10/01/2025.

The Complainant commenced employment with the Respondent on 12/06/2023.  The Complainant at all material times was employed as a Senior Software Engineer Integrations.  The Complainant worked 40 hours per week for which he was paid €5400.00 gross monthly. 

The Complainant relies on the Employment Equality Act, 1998 to ground his complaints against the Respondent who is his former employer.  The WRC, upon receipt of the Complainant’s complaint, alerted the Complainant to the fact that his complaint was out of time by correspondence on

16/08/2024 as follows:

“The complaint/disputeappears to have been presented after the expiration of the statutory timeline of six months from the time of the contravention.  However, an Adjudication Officer has the power to extend this time limit to a maximum of 12 months, if the complainant can demonstrate that the failure to comply with the 6-month time limit occurred as a result of reasonable cause. 

If you consider that your complaint was presented within the application time limit or that the failure to present the complaint within 6 months was due to reasonable cause, you can submit a response within 14 days, outlining the reasons why you consider the failure to submit your complaint within the statutory timeframe amounted to reasonable cause.  This will be considered by an Adjudication Officer as a preliminary issue.  Otherwise, the matter may be considered out of time and will not progress to an Adjudication hearing.”  

The foregoing correspondence did not elicit a response from the Complainant.  Notwithstanding, having regard to the fact that the Complainant is a litigant in person and in the interests of fair procedures I invited him to address me in writing on the matter of the statutory timelines and to set out the reasons why he considers the failure to submit his complaint within the statutory timelines could amount to reasonable cause for the delay that might lead to the granting of an extension of time. 

It was explained to the parties at hearing that in the event I find in favour of the Complainant in regard to granting an extension of time there would be a hearing on the substantive matter.  I indicated to the Complainant that further detail would be required from him to substantiate his claims having clarified with him that the email sent to the WRC on 02/01/2025 comprised the totality of his submission which he confirmed. 

It was explained to the parties that in the event I find in favour of the Respondent on the matter of the preliminary issue regarding time limits there will not be a further hearing as I would then be precluded from determining on the substantive matter. 

To ensure clarity and understanding I reaffirmed that if I were satisfied of jurisdiction the hearing would be reconvened to allow the parties to give evidence on the substantive matter.  If it was clear that I had no jurisdiction there would be no requirement to reconvene to hear the substantive matter and a decision would issue. 

Submissions on the preliminary objection raised regarding time limits were filed by the Complainant as requested on 23/01/2025 which were duly copied to the Respondent who was provided with the right of reply on or before 07/02/2025 as agreed at hearing. 

In circumstances whereby the jurisdictional issue of time limits may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. 

CA-00065207-001

The Complainant submits he was not able to file his complaint because he was sick.  The Complainant submits that his health which had started being jeopardised became worse after his dismissal. 

The Complainant submits his work-related stress was exacerbated by his dismissal, his body aches increased, and he had to depend on medication.  The Complainant submits he was unable to reason properly and do meaningful things and that he submitted a wrong complaint in June 2024 under those circumstances. 

The Complainant submits his stress increased when his complaint was rejected and that he had to increase the dose of painkillers.  The Complainant submits the employer was aware of how his health was getting bad when they dismissed him.  The Complainant submits it was not possible to attend the GP under his employment arrangements after his dismissal. 

The Complainant submitted a gastroenterology referral dated 11/01/2024; a referral for an MRI lumbar spine dated 04/02/2024 providing detail of his current medication (at that time) as that which is commonly used to control stomach acid; and a gastroscopy report created on 06/07/2024. 

CA-00065207-001

The Respondent submits the Complainant has submitted a complaint under the section 77 of the Employment Equality Act 1998 (“the Act”) that he was discriminated against.  It is submitted that under the Act, a claim in respect of discrimination must be brought within 6 months from the date of occurrence of the alleged discrimination, or the date of its most recent occurrence.

The Respondent submits the Complainant has referenced a “most recent date of discrimination” of 18 January 2024 on his claim form.   It is submitted on that basis the period for submitting a complaint expired on 17 July 2024.   It is submitted in this instance the complaint was submitted to the WRC on 5 August 2024, outside the 6-month period, and accordingly the WRC has no jurisdiction to hear the complaint. 

It is submitted in this regard it is notable that the Complainant did submit a separate complaint against the Respondent under the Industrial Relations Acts on the 19 April 2024, and he also submitted a data subject access request to the Respondent on the 26 March 2024.   It is submitted he fact that he was able to do so demonstrates beyond doubt his capacity to submit a complaint under the Act within the required time period, but he failed to do so. 

The Respondent exercising right of reply to the Complainant’s submission on reasonable cause submits the “medical records” submitted by the Complainant do not constitute a medical opinion and do not identify any incapacity that might have impacted on the Complainant’s ability to submit his complaint within the required time period.  The Respondent submits the Complainant references work related stress and yet there was no medical evidence of stress produced by him to support this. 

The Respondent submits the Complainant’s assertion that he has to “depend on medication, unable to reason properly and do meaningful things” is unsupported by any medical evidence.  The Respondent submits the Complainant acknowledges he submitted a separate complainant arising out of his dismissal which he refers to as a “wrong complaint”. 

The Respondent submits this was a complaint made against the Respondent under section 13 of the Industrial Relations Act, 1969 received by the WRC on 19 April 2024.  The Respondent submitted its objection to same and the Respondent submits the Complainant was notified of the options available to him in normal course.  The Respondent submits the Complainant submitted a detailed data subject access request to the Respondent on 26 March 2024. 

The Respondent submits the fact the Complainant was able to submit a complaint to the WRC in April 2024 and he was also able to submit a data access request to the Respondent in March 2024 indicate beyond doubt his capacity to deal with matters in a timely manner and further submits it is beyond doubt the Complainant had the capacity to submit the complaint within the required six-month period but he failed to do so. 

CA-00065207-001

The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised from both and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

I am mindful of the case of Guerin v. SR Technics Ireland Limited [UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

Furthermore, in the case of Bus Eireann v. SIPTU [PTD8/2004] 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 case of Donal Gillespie v. Donegal Meat Processers [UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher EDA1014, the Labour Court considered the determination of an issue by way of preliminary decision. The Labour Court referred to the judgments of Kenny J. in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J. in B.T.F. v. Director of Public Prosecutions 2 ILRM 367.   In the latter case Hardiman J, found:

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue…

Following the caselaw outlined above and particularly the case of B.T.F. v. Director of Public Prosecutions I find that there is a “strong case” for determining this matter by way of preliminary decision.

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

CA-00065207-001

The Relevant Law

Section 77(5) of the Employment Equality Acts makes provision for the relevant time limits for referral of complaints by a person who intends to seek redress under the Acts and provides as follows:

“(a) Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(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 substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

In addition, Section 41 of the Workplace Relations Act, 2015 provides as follows:

(6) 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.

(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 effect of these provisions is that a complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the complaints were received by the Director General. This period can be extended to twelve months in accordance with the provisions of Section 77(5)(b) and 41 (8) of the Acts respectively, in circumstances where the complainant can demonstrate that there was “reasonable cause” which prevented him from referring the complaint within the prescribed time limits.

Section 41(8) of the Workplace Relations Act, 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of twelve months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions.

The discretion to entertain a complaint after the 6-month period has expired is a discretion that is subject to well-established legal principles and legal tests.  The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay. 

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.  It is clear from the authorities that the test places the onus on the Applicant on 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 on the Applicant to establish a causal link 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 complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the proceedings. 

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. 

The Labour Court in the case of A Bank v. A Worker [EDA104] stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay is an “irreducible minimum requirement.” [emphasis added]

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] as follows:

“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 context in which the expression reasonable appears it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material 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.”

For an explanation of reasonable cause to succeed –

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                 A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. 

In arriving at my decision I am guided by the fact that the Labour Court has given consideration to the meaning to be ascribed to “reasonable cause” in employment statutes as the basis for extending time to initiate complaints under those enactments.  

The Labour Court has further emphasised that where reasonable cause is shown a decision maker must still consider if it is appropriate in the circumstances to exercise their discretion in favour of granting an extension of time.  Whether or not the respondent has suffered any prejudice by the delay should be considered. 

The burden of proof in establishing the existence of reasonable cause rests with the Complainant. To discharge that burden, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time.

Finally, I must satisfy myself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

The Relevant Facts

The Complainant filed his complaint with the WRC on 05 August 2024 and he referenced the most recent date of discrimination as 18 January 2024.  Accordingly, in order to comply with the statutory time limits the Complainant’s complaint should have been filed with the WRC on or before 17 July 2024. 

The Complainant has grounded his application for an extension of time on the basis that he was sick and that he was unable to reason properly and to do meaningful things.  However, I do not have before me any medical evidence to support a medical diagnosis or to support the assertion that the indicators the Complainant complains of  i.e., he was unable to reason properly and to do meaningful things prevented him from lodging a complaint to the WRC in time because what the Complainant has provided does not constitute a medical report for my consideration in support of his application to extend time on the aforesaid basis.    

The Complainant has provided two medical referrals one for a lower GI endoscopy and the other for an MRI lumbar spine and a gastroscopy report in relation to the former.    

Furthermore, the Complainant’s submission that his health was such that he was not in a position to file the complaint simply does not tally with the facts as presented when it is taken into consideration that the Complainant filed a complaint with the WRC in the relevant time period and he also submitted a data subject access request to the Respondent in the relevant time period. 

This tends to suggest that the Complainant was well enough in March and April to attend to such matters.  I find I am unable to reconcile the Complainant’s submission in this regard with the facts as presented.   

On that basis I can find no impediment rendering him incapable of submitting his complaint and I am satisfied there was nothing to prevent the Complainant from bringing this complaint on time to the WRC as I do not accept the filing of this complaint could reasonably be seen to be more onerous than the filing of the complaint with the WRC in April and the SAR in March.    

While the reasons relied upon by the Complainant may explain the delay, I am unable to find they excuse the delay.  The Complainant has not met the standard of reasonable cause set out in the well-established test in the Cementation case of which I am mindful.  I am satisfied that nothing has been advanced by the Complainant that both explains and excuses the delay. 

Applying Cementation, I find the reason put forward by the Complainant does not explain or excuse the delay; it is not a reasonable explanation; and it does not persuade me to grant an extension of time.

Accordingly, I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time.  

I find the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of a claim to the WRC under the Workplace Relations Act, 2015.  I find I have no jurisdiction to determine the substantive case under the specific complaint reference CA-00065207-001.

I conclude I have no jurisdiction to determine the substantive matter because the aforesaid complaint is out time thus depriving me of jurisdiction. 

In light of this finding there is no requirement that I consider the remaining preliminary matters raised by the Respondent. 

CA-00065207-001.

For the reasons stated above I find I have no jurisdiction to hear this complaint because it is statute-barred.  Accordingly, I decide this complaint is not well-founded. 

Statute-barred; out of time;