EDA254

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044836 (CA-00055238-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 30 December 2023. Labour Court hearings took place on 19 December 2024.

The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Bahman Honari (the Complainant) against Decision ADJ-00044836 CA-00055238-001 of an Adjudication Officer under the Employment Equality Acts 1998 to 2015(the Acts) against Healthcare Pricing Office HSE (the Respondent).  The Adjudication Officer held that the complaint was out of time. 

1) Background

The Complainant applied for a Grade VIII position of Statistician in the Healthcare Pricing Office HSE. He was interviewed on the 5 July 2022 and was unsuccessful at interview. The Complainant states that he was discriminated against on the grounds of age and race. The Respondent disputed that there was any discrimination and further submitted that the complaint was out of time. The complaint was lodged with the WRC on 23 February 2023.

2) Preliminary issues

 The Respondent raised as an issue the fact that the Complainants complaint was out of time.   They submitted that the interview was held on 5 July 2022 and candidates were notified of the outcome on the same day. The Complainant made an informal appeal on the 6 July 2022. On the 11 July 2022 CPL advised that they were satisfied that the interview was conducted and scored in compliance with the Commission for Public Service Appointments Code of Practice and his informal appeal was not upheld. On the 18 July 2022 the Complainant lodged a formal appeal. By letter of 23 August 2022 the Complainant was advised that his appeal was not upheld and the reasons for that decision. In December 2022 the Commission for Public Services Appointments issued its report noting that the candidates were treated equally, the board was gender balanced, that there were some administrative errors that did not amount to a breach of the Code and that the public body did breach the code in respect of lack of feedback to candidates.

 The Respondent submitted that any alleged breach of the Act could only have occurred on the 5 July 2022 the date of the interview and the date the outcome of the interview was declared.

 The Complainant submitted that the date of the last act of discrimination was 23 August 2022, when he was advised that his formal appeal was not upheld.  He stated that he was seeking an extension of time as provided for in the Act based on ‘reasonable cause’.

The Complainant submitted that he does not generally believe that an organisation should be penalised for the fault or inappropriate action of a single or even a couple of members of staff. He believed that he acted in good faith by allowing time for the Respondent to compensate him for the inappropriate interview outcome. Unfortunately, such opportunity was stubbornly ignored by the Respondent. It was at that point that he decided to file his complaint with the WRC.

In respect of the delay of one day that was implied in the Adjudication Officer’s decision this was due to a misunderstanding of the legislation, as he did not realise that the time limit included the day of the last act of discrimination. He stated that he did not have the benefit of independent legal advice. It was his position that as a mathematician he logically reasoned that it was the day after the day of the occurrence as he had only received the outcome on the evening of 23 August 2022.

The Complainant submitted that it was his interpretation of the legislation regarding the definition of day one that was the main cause of the delay, and the fact that he did not have professional legal advice was the ‘reasonable cause’ for the delay. The Complainant submitted that he was relying on the Court’s Determination in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338 to support his application for an extension of time.

   3) Conclusion of the Court on the Preliminary Matter

 TheCourt in the case of CementationSkanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338 established the test for deciding if an extension should be granted for reasonable cause. 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.

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.

The Complainant submitted that the last act of discrimination was 23rd August 2022, which is one day outside of the reckonable period. The explanation for the delay was threefold

 1) he was allowing the Respondent an opportunity to accept what had happened was wrong even though his appeals had not been upheld,

2) he had miscalculated the time period provided for in the act as he was not aware that the day of occurrence of the act was counted as day one.  Also, he was a lay litigant and did not have legal advice and

3) as he had received the notification of the outcome of the appeal on the evening of 23rd August 2023, he thought logically that day would not count.

 As set out above there must be a casual link between the circumstances citied and the delay. The Complainant has focused on why the complaint was lodged on 23 Feb 2022 and not the 22nd because he had misunderstood when day one was in terms of the time limits. However, that does not account for the fact that he had six months prior to that date to lodge the complaint.  The Complainant stated that he delayed submitting his complaint as he was allowing the Respondent the opportunity to make amends. However, there was no evidence oral or otherwise before the Court to show that the Respondent was engaging with him in any way on this issue.

When it was put to the Respondent, they categorically stated that there was never any indication that they believed they needed to make amends as both of his appeals had failed.

Having considered the submissions both oral and written from both parties the Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Court is further satisfied that, if there was a contravention of the Act, that date was no later than23 August 2022. The Complainant’s claim was not presented to the Workplace Relations Commission until 23rd February 2023 and was therefore outside of the statutory time limit. The Court finds that the reasons proffered by the Complainant do not either explain the delay and or afford an excuse for the delay.  The Complainant has not satisfied the Court, that as a matter of probability, that had the circumstances outlined above, not been present that he would have initiated the claim in time. 

4) Determination

For all the reasons set out above, the Court finds that the complaint under the Act is statute-barred and therefore must fail. 

Accordingly, the Complainant’s appeal is not allowed, and the Decision of the Adjudication Officer is upheld.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
ÁM	______________________
6th January 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Áine Maunsell, Court Secretary.