EDA224

FULL RECOMMENDATION

SECTION 77 (12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES :

FORMPRESS PUBLISHING LIMITED
(REPRESENTED BY FLYNN O'DRISCOLL LLP)

- AND -

MS MARIE CASEY
(REPRESENTED BY JOHN J QUINN & CO LLP)

DIVISION :

SUBJECT:

1. Appeal Of Adjudication Officer Decision No: ADJ-00024865 CA-00031223, CA-00027713-002

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 13 September 2021. A Labour Court hearing took place in a virtual Courtroom on 1 February 2022. The following is the Court's Determination:

DETERMINATION :

This is an appeal by Ms Marie Casey (the Complainant) against the Decision of an Adjudication Officer under the Employment Equality Acts 1998 -2015 (the Act) against her employer Formpress Publishing Limited (the Respondent). The Adjudication Officer held that the complaint was not well founded and was out of time.

Background

The Complainant commenced employment with the Longford Leader on the 2^nd January 1997. She performed numerous roles for the company over the years including front office, reception and advertising.

The company changed hands on a few occasions and was taken over by the Respondent in April 2014. The Complainant’s employment came to an end shortly after her 65^th Birthday on the 31^st December 2018. The Complainant states that she was discriminated on the grounds of age and that she was forced to retire despite not having a retirement age in her contract.

Complainant’s submission and evidence

The Complainant’s employment ended on the 31^st December 2018 and this complaint was lodged with the WRC on the 1^st October 2019. The Complainant does not dispute that the complaint is outside the six-month time limit set out in the Act. However, the Complainant can demonstrate reasonable cause for the delay.

The Complainant understood her employer to be Iconic Newspapers Limited and she took a case against them within the specified time limits. The Complainant submitted that her payslips referred to Iconic, her P60 for 2015 referred to Iconic. The Complainant also filled in a new starter form for Iconic and other administrative tasks like expenses and holiday requests were done through Iconic staff.

The Complainant first became aware that Formpress and not Iconic might be her employer on the 20^th September 2019 when her legal representatives received a letter from the Respondent’s solicitors. In her evidence to the Court the Complainant stated in 2014 when her employment was transferred to Formpress she received some generic emails that were sent to staff about the transfer. However, she did not receive a letter addressed to her in respect of the transfer.

The Complainant stated that her 2015 P60 stated Iconic as her employer. She accepted that her 2016 and 2017 P60 stated Formpress. The Complainant referenced three pays slips she had included with her submission that showed Iconics her Employer. The Complainant accepted that the latest payslip she submitted was 24^th April 2018 and that payslips for later in 2018 would have said Formpress. The Complainant confirmed that she had signed the pension documentation but stated that it only said that Formpress was the pension scheme name.

The Complainants Representative stated that the Complainant’s belief that Iconic was her employer is supported by her payslips, P60’s and other documentation that she referenced.

While the Complainant was on notice that Formpress was her employer from the 20^th September 2019 when she received a letter from the Respondent informing her of same. It was submitted that her legal representative was out of the country when the letter was received. By letter of the 25th September 2019 the Complainant’s representatives advised the Respondent’s representatives that they would be contesting the fact of who the correct Employer was at the hearing in the WRC scheduled for the 30^th September against Iconic.

Following the WRC hearing on the 30^th September the Complainant lodged her case against Formpress.

The Complainant representative opened the case of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll Determination WTC0338 to the Court which set out the test for granting an extension of time for reasonable cause.

The Complainants representative submitted that the Complainant met the test set out and had explained the delay in that she did not know that Formpress was her employer and that fact only crystalised at the hearing at the WRC on the 30^th September 2019. The next day the 1st October 2019 the Complainant submitted her complaint against Formpress to the WRC.

Respondent’s submission

The Respondent submitted that the Complainant had not shown reasonable cause why the claims were not submitted in time. The Complainant had P60’s and Payslips which stated that Formpress was her employer.

While there was a delay in changing the name on the payslips the Complainant did not dispute that her payslips in the later part of 2018 stated that Formpress was her employer.

Even if the Complainant as she alleges was not aware that from the period 2014 until she left the company that Formpress was her employer she does not dispute that she received a letter from the Respondent’s solicitor on the 20^{th of} September 2019, but she still did not submit her complainant until ten days later.

The Respondent is also relying on the case of Cementation Skanska opened to the Court by the Complainant. The Respondent submits that the Complainant has not established reasonable cause for the delay in submitting her complaint. The Respondent disputes the Complainant’s evidence that she had no documentation indicating that Formpress was her employer.

The Complainant sought to rely on a 2015 P60 and payslips prior to May 2018 to show that Iconic was her employer but did not dispute that the later P60’s 2016 and 2017 and the payslips for the latter part of 2018 up to her retirement named Formpress as her employer.

Conclusions of the Court on the Preliminary Matters

The Court in the case of Cementation Skanska (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 that she did not know that Formpress was her employer yet her evidence was that her latest P60’s and payslip indicated that Formpress was her employer. No explanation was put to the Court as to why the Complainant did not rely on the most recent documentation but instead sought to rely on older documents.

The Complainants decision to rely on the older documents influenced her decision to submit a complaint against Iconic rather than Formpress. No explanation was put before the Court as to why the Complainant preferred to rely on the older documentation as an indication of her employer rather than the more current documentation.

The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Complainant’s last date of employment was the 31^st December 2018. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place. As the Complainant’s claim was not presented to the Workplace Relations Commission until 1^st October 2019 it was therefore outside of the statutory time limit.

The Court finds that the reason proffered by the Complainant that she did not know the Formpress was her employer is not supported by the documentation placed before the Court or her own evidence as set out above. The Court finds that the Complainant has not provided a reasonable cause that explains the delay, and afford an excuse for the delay.

Determination

For all the reasons set out above, the Court finds that the complaint under the Act is statute-barred and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter.

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

The Court so Determines.

NOTE

Enquiries concerning this Determination should be addressed to Sinead O'Connor, Court Secretary.