EDA2558

PARTIES:

DIVISION:

SUBJECT:

Appeal of an Adjudication Officer’s Decision No: ADJ-00045938 (CA-00056745-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 24 November 2023. A Labour Court hearing took place on 23 May 2025.

The following is the determination of the Court.

DETERMINATION:

This is an appeal by Sabine Franklin of a Decision of an Adjudication Officer (number ADJ-00045939, CA-00056745-001) made under the Employment Equality Act, 1998 (“The Act”) in relation to a complaint against her former employer the University Of Galway Nui Galway. The Adjudication Officer found that the complaint was statute barred.

A remote hearing of the Labour Court was held in Dublin on 22 May 2025.

For ease, the parties are referred to in this Determination as they were cited at first instance. Hence, Sabine Franklin is referred to as “the Complainant” and University Of Galway Nui Galway as “the Respondent”.

    1. Preliminary Matter - Application for an Extension of Time

A preliminary matter was raised by the Respondent in relation to the time limits under the Act for lodging a complaint.

Rule 34 of the Labour Court Rules provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

By agreement with the parties, the Court proposed that it would hear and decide the preliminary matter of time limits in the first instance. The Court proceeded on that basis and heard submissions from both parties on the preliminary matter.

     2. Preliminary Matter - Summary of Respondent’s Position

The Complainant commenced employment on 1 February 2022. She resigned her position on 28 April 2022, and her employment ended on 1 June 2022. The Complainant lodged her complaints to the WRC on 18 May 2023 more than 12 months after she resigned her employment.

The Complainant is statute barred from proceeding with her complaints, which are manifestly out of time. Even allowing for an extension of six months on grounds of “reasonable cause”, the complaints cited fall outside the maximum available 12-month time limit.

The Complainant seeks to rely on erroneous information provided to her by a servant or agent in the WRC in an email on 15 June 2022 as a basis for delaying the submission of her claim. The Complainant enquired whether a complaint could be brought later to the WRC if the internal process took longer. The answer provided by the WRC was “yes, as it will be ongoing”. This information, while erroneous, should have given the Complainant no comfort.

Ignorance of one’s rights is not a basis for reasonable cause. In Minister for Finance v CPSU & Ors [2007] 18 ELR 36, the Court held that: - “ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing the statutory time limit”. 

Furthermore, in Baxter v Kildare County Council 1255/2005 and Adjudication Officer in ADJ-00001568 it was held that errors on the part of legal advisers do not provide an excuse for delaying in lodging claims. This is a similar situation; it is not the fault of the Respondent, and it should not suffer the consequences of the incorrect advice provided by the WRC.

Without prejudice to the foregoing, the Complainant was furnished with a Complaints Panel Report on 14 March 2023, yet delayed in lodging a complaint with the WRC until 18 May 2023, over 2 months later. It was for the Complainant to show that there were reasons which both explain the delay, and which afford an excuse for it. The argument that the provision of a report on foot of an internal investigation could amount to a further act or discrimination was rejected by the Labour Court in McEvoy v Business Mobile Security Services Limited T/A Seneca (EDA 1621). The Complainant is not entitled to seek to rely on an internal complaint and the outcome of an internal process as a form of fresh discrimination to save earlier allegations that otherwise are statute barred.

Even if the Complainant were to establish “reasonable cause”, the Complainant does not have a good arguable case. The Respondent is prejudiced having to address these claims.

Without prejudice to the above, none of these alleged breaches occurred within the cognisable period of 17 November 2022 to 18 May 2023. Alleged acts of discrimination, harassment and victimisation after her employment ceased on 1 June 2022, cannot be considered by the Court as the right to bring a claim under the Act is premised on the existence of an ongoing employment relationship.

Furthermore, there was no misrepresentation on the part of the Respondent under section 77(6) that delayed the Complainant lodging her claims. There was no discriminatory regime, rule, practice or principle in place nor was there a series of separate acts or omissions sufficiently connected to constitute a continuum of discrimination to bring any other acts or omissions outside the cognisable/maximum allowable period into consideration.

    3. Preliminary Matter - Summary of the Complainant’s Position

The Complainant ceased employment on the 1 June 2022 due to discrimination and a deterioration in her health. She lodged her complaint with the WRC on the 18 May 2023.

The Respondent cannot benefit from the preliminary point raised in circumstances where an internal investigation took ten months to complete and the Complainant clearly had an intention to lodge a complaint with the WRC and was unknowingly misdirected by the WRC on 16 June 2022.

The initial internal complaints procedure was in itself defective. The Respondents policy in relation to internal complaints states: -

“Complaints should be made within 6 months of an incident occurring. Complaints will be acknowledged within 5 working days. The investigation team will endeavour to conduct the investigation within 40 working days. The Complaints Panel will decide on the complaint, having received the investigation report, within 20 working days. The decision will be issued within 10 working days of such a decision.”

An internal complaint commenced on 1 June 2022 and did not conclude until 23 January 2023. The investigation findings were reviewed by a panel which drew difference conclusions in a report published in March 2023. The Complainant submitted an appeal to those findings on 14 April 2023. She lodged her complaint to the WRC on 18 May 2023.

In considering the delay, the Court should assess what prejudice arises for the Respondent and whether the Respondent's own conduct amounts to acquiescence in relation to the delay.

The Complainant is entitled to make an application for an extension of time where there is reasonable cause for doing so in circumstances where she made active inquiries with the WRC in relation to rights in delaying the launching of the filing of her complaint. On 15 June 2022, the complainant submitted a query to the WRC to which she received a reply on 16 June 2022. The information received was inadvertently misleading. This led to the Complainant delaying the lodging of her complaint until 18 May 2023.

The Complainant's correspondence to the WRC on 15 June 2022 was sent 14 days after she left her employment on 1 June 2022 and indicated a clear intention to lodge a complaint well within the six-month period. The reason for the delay makes sense and meets the objective standard for reasonable cause. Had she received an alternative response from the WRC, the claim would have been lodged in June of 2022.

A complaint was lodged to the WRC on 18 May 2023, less than 12 months from the last incident of discrimination on 26 May 2022.

    4. Relevant Law

The relevant statutory time limits are set down at Section 77(5) of the Act, which states as follows:

• (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.

    5. Deliberation and Findings

The preliminary matter for determination by the Court is an application for an extension of time. As the Complainant lodged her complaint to the WRC on 18 May 2023, the relevant period for consideration by the Court in assessing a contravention under the Act, having regard to the six-month statutory time frame set down at s.77(5) of the Act is the period from 19 November 2022 to 18 May 2023.

Should the Court find a reasonable cause for the delay in lodging the claim, the timeframe for considering when a contravention occurred can be extended from six months to twelve months, i.e. 19 May 2022 to 18 May 2023. The Complainant in this case seeks an extension of the timeframe for lodging her complaint on the basis that her failure to present a complaint within time was due to reasonable cause.

The established test for deciding if an extension of time can be granted for reasonable cause is that formulated by this Court in Labour Court Determination DWT0338, Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.  The test was set out 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.”

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. (as he then was) stated 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 O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The burden of proof in establishing the existence of reasonable cause rests with the Complainant. To discharge that burden, and for this Court to grant an extension of time, 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, the Court must satisfy itself 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.

What happened to prevent the complaint being lodged within time?

The Complainant submits that there was both a valid reason and a justifiable excuse for the delay in lodging the claim, as she clearly had an intention to lodge a formal complaint with the WRC but was unknowingly misdirected by the WRC on 16 June 2022.

On 15 June 2022, the Complainant sent an email query to the WRC, which stated as follows:

“Hello. I was an international staff member at NUI Galway. I resigned due to discrimination. I filed a discrimination complaint at my university and it is currently underway. I heard that I have six months to bring a complaint to the WRC. However, can a complaint be brought later to the WRC if the internal process takes longer?”

It is clear from that email that the Complainant was considering lodging a formal complaint to the WRC and had an awareness of the existence of a time limit when lodging a complaint under the Act.

The reply from the WRC to the Complainant on 16 June 2022, stated as follows:

“Dear Sir Madam

Thank you for contacting the Workplace Relations Commission.

Please find the following information in relation to your query.

Yes, it will be ongoing.

I trust this will be of assistance. If you require information on general employment rights, you may find the information you need on our website at www.workplacerelations.ie.”

This information may be useful to you where you are considering making a complaint for hearing by an Adjudicator. It is worth noting that further to the Supreme Court judgement Zalewski [2021] IESC 24 the WRC can no longer guarantee hearings will be in private or that decisions would be anonymised.

If your query is of a more specific nature and you may find it useful to contact us directly on our information line on 0818 80 80 90 or 059 917 8990.

Our phone service opening hours are 9:30am to 5:00pm, Monday to Friday.”

The Complainant relies solely on the above response from the WRC to ground her application for an extension time. She submits that she received clear advice from the WRC and understood that advice to be correct.

The Court cannot agree that the reply from the WRC to the Complainant - “Yes, it will be ongoing” - was clear advice such that it would entitle her to delay lodging her claim to the WRC. The statement “yes, it will be ongoing” is vague. No information was provided on the possible extension of time limits. The Complainant was, however, directed to the WRC website or WRC telephone service if she required more specific information. It appears the Complainant did not seek any further information to clarify any matters arising. Instead, she waited for the outcome of the Respondent’s internal investigation.

The Complainant in this case further submits that the delay in lodging her complaint under the Act was not the result of an error on her part. That may be the case, but Court does not agree that the receipt of erroneous advice forms a basis for an extension of time. The well-established jurisprudence from this Court has regularly found that ignorance of the law cannot excuse the lodging of complaints outside the statutory time limits that apply. While ignorance about the time limits for lodging her complaint and her reliance on an email from the WRC may explain a delay in submitting the claim, they do not find a justifiable excuse for the delay.

In response to questions from the Court, Counsel for the Complainant accepted that the Complainant cannot rely on any events that post-date the termination of the employment relationship on 1 June 2022 to ground her complaints under the Acts. However, it was submitted on behalf of the Complainant that the Respondent should not be allowed to benefit in circumstances where an internal investigation took ten months to complete. While it is clear that there was a delay on the part of the Respondent in issuing the Complaints Panel report, the fact remains that the Complainant made a decision to await the outcome of the internal investigation before submitting her complaint to the WRC. A similar matter was addressed by this Court in McEvoy v Business Mobile Security Services Limited T/A Seneca (EDA 1621) where Mr McEvoy awaited the outcome of an internal grievance process before commencing proceedings under the Act. The Court determined in that case: -

“[Mr McEvoy] made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction. The court finds that such a decision cannot justify the delay in bringing proceedings under the act and accordingly determines that the complaint is statute barred.”

In the within case, the Complainant’s employment ceased on 1 June 2022. She submitted a complaint to the WRC over 11 months later on 18 May 2023, citing the most recent date of alleged discrimination as 14 March 2023, which was the date that the investigation report into her internal complaint issued.  No adequate explanation was given to explain why the Complainant did not lodge her complaint to the WRC in March 2023 at that point and instead waited until 18 May 2023 to do so, in circumstances where she had clearly indicated some awareness about statutory time limits when lodging complaints in her email to the WRC dated 15 June 2022.

The Court heard that the Complainant lodged her claim to the WRC in May 2023 after speaking to some colleagues in the law department.

Where there is a long delay in lodging a complaint, the Complainant is under a greater onus to prove reasonable cause. As set out in Cementation Skanksa a short delay may require only a slight explanation whereas a long delay may require more cogent reasons to explain why the Complainant was prevented from lodging a complaint within the six-month time limit set out in the Act. In the Court’s judgment no valid explanation to properly account for the delay has been furnished that offers an excuse or explains the delay in lodging a complaint form to the WRC on 18 May 2023.

In all the circumstances, the Court finds that the Complainant does not meet the threshold outlined in Cementation Skanksa whereby the statutory timeframe within which she is permitted to refer her complaint under the Act can be enlarged for reasonable cause.

It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay. While the reasons submitted by the Complainant in this case may explain the delay, the Court finds that they do not provide afford a justifiable excuse for the delay.

In all the circumstances, the Court is of the view that a justifiable basis upon which an extension of time could be granted has not been put forward in this case. The Court cannot assume a jurisdiction which is not conferred to it. A failure on the part of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim. As a result, the Court finds that it has no jurisdiction to hear the complaint.

    06. Determination

The Court finds that the reasons provided by the Complainant are not sufficient to demonstrate reasonable cause for the delay in filing her complaint with the WRC.  Therefore, the Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission and is accordingly statute barred. 

In these circumstances, the Court cannot proceed to hear the substantive matter.

Accordingly, the Court finds that the complaint is not well founded and that the Determination of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
ÁM	______________________
15 July 2025	Deputy Chairman

NOTE

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