EDA2544

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00049414 (CA-00060551-001).

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 12 June 2024. A Labour Court hearing took place on 15 April 2024

The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is an appeal on behalf of the National Drug Treatment Centre/Health Service Executive (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00049414, dated 8 May 2024) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 12 June 2024. The Court heard the appeal in Dublin on 15 April 2025.

The Factual Matrix

Mr Daniel Cummins (‘the Complainant’) has been employed by the Respondent as a part-time General Assistant (Weekend Panel) since 6 June 2000. On 13 April 2023, the HSE National Recruitment Service advertised to form a panel of permanent General Assistants with a closing date of 5 May 2023. The eligibility criteria for the post included inter alia (i) a Level 5 QQI qualification in Healthcare Support or (ii) a Level 5 QQI qualification in Health Service Skills or (iii) a relevant health care qualification equivalent to either (i) or (ii).

The Complainant submitted an application for this competition which confirmed that he did not hold a Level 5 QQI qualification in either Healthcare Support or Health Service Skills. He submitted that successful completion of psychology modules he had undertaken as part of his Level qualification in Business Management and Administration in 2009 met criterion (iii). 

A shortlisting process took place during which the applications received were screened against the advertised eligibility criteria. The Complainant’s qualification was not deemed to meet any of the criteria as there was no relevant healthcare component to his Level 8 qualification which was a business degree. The Complainant was notified on 10 May 2023, by email from HSE Recruitment, that he had been unsuccessful in the eligibility exercise as he did not demonstrate that he held an appropriate qualification. He was also advised in that email that his application would not be processed further.

On 10 May 2023, the Complainant contacted his Trade Union by email in relation to his unsuccessful application. An Official from that Trade Union contacted the Respondent the following day. On 11 May 2023, the Complainant was directed to address the matter through the National Recruitment Service in line with the recruitment Code of Practice. The Complainant did not pursue this course.

On 15 December 2023, the Complainant submitted a complaint under the Act to the Workplace Relations Commission alleging that he had been discriminated against on the age ground by the Respondent. He stated that the most recent act of alleged discrimination had occurred on 10 May 2023. His complaint was upheld at first instance and the Adjudication Officer awarded him €1,000.00 for indirect discrimination on the age ground.

Preliminary Issue

At the commencement of the within appeal hearing, Ms McGowan BL – for the Respondent – moved an application to have the matter dismissed on grounds that the Complainant’s originating complaint under the Act was referred outside the six-month statutory time frame. Mr Bradley BL, the Complainant's Counsel, accepted that the originating complaint was out of time but submitted that the Court should extend time on the basis that the Complainant had been attempting to engage with his Trade Union in relation to the outcome of the competition for some time.

The Law

Section 77(5) of the Act provides:

“(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.

(b) On application by a complainant the Director General 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.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.”

The test which must be applied in cases where an extension of time to refer a statutory employment claim is sought – for example, as in this case, pursuant to section 77(5)(b) – was established by this Court in CementationSkanska (Formerly Kvaerner Cementation Limited) v Carroll DWT0425. In its decision in that case, the Court stated:

“It is the Courts 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 his or her 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 in the statute 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.”

Application of the Law to the Facts

It is common case that the Complainant has submitted that the most recent date of alleged discrimination he relies on occurred on 10 May 2023. It is also common case that the Complainant referred his originating complaint to the Workplace Relations Commission on 15 December 2023, some seven months and five days after the most recent alleged act of discrimination. It follows that the burden of establishing that there is reasonable cause for extending time for the complaint falls on the Complainant. In short, the Complainant must advance reasons which both explain this delay in referring his complaint and afford an excuse for the delay.

In seeking to meet this evidential burden, the Complainant relies on his alleged efforts to engage with his Trade Union which he submits failed to provide him with the information he had requested of it over a protracted period.

In the Court’s view, the grounds relied on by the Complainant in support of his application to extend time – even had they been supported by sworn evidence – do not, and could not, meet the test established by it in Cementation Skanska. The Court has repeatedly stated, in cases involving analogous circumstances, that the proper course of action for a complainant to take is that they should ensure that their statutory complainant is referred to the Workplace Relations Commission within the statutory timeframe for so doing; if the matter with their employer is thereafter resolved, for example with the assistance of a Trade Union, the statutory complaint can then be withdrawn.

On the basis of the foregoing, the Court finds that the appeal succeeds and the decision of the Adjudication Officer, in its entirety, is set aside.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
TH	______________________
22nd April 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.