EDA2318

1. Appeal of Adjudication Officer Decision No(s) ADJ-00032264 CA-00042625-001

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section (83) (1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 21 February 2023. The following is the Court's Determination:-






DETERMINATION:

This matter comes before the Court as an appeal by Michail Michailidis (the Appellant) against a decision of an Adjudication Officer in his complaint made under the Employment Equality Act, 1998 (the Act) against Luxor Leisure Ltd Radisson Blu Royal Hotel (the Respondent).

Background

The Appellant was employed by the Respondent from 24^th August 2019 until the date of termination of his employment on 20^th March 2020. He made the complaint giving rise to the within appeal on 21^st February 2021. A complaint alleging a breach of the Act on or before 20^th March 2020 would, were it to be made in time, require to be made on or before by 19^th September 2020.

The Appellant complained that he had been victimised in contravention of the Act for taking an action described at Section 74(2) of the Act. The unlawful act of victimisation was contended to have occurred on or before the date of termination of his employment.

Approach of the Court at the hearing

The Respondent submitted to the Court that the originating complaint to the Workplace Relations Commission (WRC) had been made outside of the time limit of six months permitted by the Act at Section 77(5)(a) for the making of a complaint. The Appellant submitted that time limit for the making of the complaint should, in accordance with the terms of the Act at Section 77(5)(b), be extended so as to bring a complaint made on 21^st February 2021 within time.

The Court proposed to the parties that it would hear the parties with regard to the matter of time limits for the making of a complaint and, having so heard the parties, would withdraw to consider how to proceed. Both parties agreed that this initial approach was appropriate.

The Court then proceeded to hear the parties in relation to the matter of time limits alone. The Court then withdrew and, on the short adjournment, decided that it would be appropriate to consider the issue of time limits as a preliminary matter should the parties be agreeable to such an approach. The Court’s decision on this matter was made on the basis that the decision of the Court on the preliminary matter of time limits had the potential to dispose of the entire matter and to lead to an efficiency of process.

The Court, on resumption of the hearing, set out its decision to the parties and outlined that such an approach would result in a decision being made on that matter before hearing the parties in relation to the substantive matters giving rise to the complaint or any other preliminary matter. The Court set out that this approach had the meaning that a decision of the Court could dispose of the entire matter or could result in a further hearing on another date.

The Court, having regard to the fact that the Appellant was unrepresented, took care to ensure that the Appellant understood the proposed approach of the Court. He confirmed to the Court that he did understand the approach of the Court.

The Court invited both parties to comment on the proposed approach of the Court. Both parties agreed that this approach was sensible and agreed that the Court should proceed in that manner.

The Appellant submitted that significant circumstances had arisen which should form the basis for a decision by the Court to extend the time for the making of the within complaint.

He submitted that a pandemic was affecting the entire country and that made matters very difficult including the submission of his complaint to the WRC following his dismissal on 20^th March 2020.

He submitted that he had become ill in October 2019 and remained so until 2022 and that his illness was such as to mean that he could not make the complaint to the WRC in time.

He confirmed to the Court that he was supported by the Citizens Advice Service and by legal advice throughout the period following his dismissal.

Summary position of the Respondent

The Respondent submitted that no cogent basis had been tendered by the Appellant for the Court to extend the time limit for the making of a complaint. No reasonable cause existed for the delay in making the within complaint.

The Respondent asked the Court to consider its own jurisprudence in including in the case of Cementation Skanska v Tom Carroll DWT 0388 where the Court had considered the meaning of the legislative test of ‘reasonable cause’ where it stated

• “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 Court cannot ignore the fact that, in the instant case, the Complainant was in a position to pursue claims regarding his social welfare entitlements and to pursue a personal injuries claim in the 6 months’ period subsequent to his dismissal. This does not suggest that the Complainant was incapable of making a complaint of unfair dismissal under the Act within that time-frame. The Court does not doubt the Complainant’s health difficulties or the fact that he found the fact of his dismissal to be traumatic. However, he was clearly capable of dealing with other matters in that period. Therefore, in establishing reasonable cause for the delay in lodging a complaint under the Act, it is necessary for him to show that there was some factor that prevented him from submitting such a complaint while he was capable of making other claims to other bodies, to fill out relevant online forms and to engage in correspondence regarding those matters. He has not been able to do so to the satisfaction of the Court.

  Accordingly, the Court concludes that the complaint was submitted outside of the prescribed time limits without reasonable cause and the Court does not have jurisdiction to hear the appeal.

The Law

The Employment Equality Act, 1998 makes provision in relevant part at Section 77(5) as follows:

• 77(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 F119[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.
    
    

The preliminary matter before the Court involves the application of Section 77(5) of the Act to the referral of the within complaint to the WRC by the Appellant.

As has been submitted by the Respondent, this Court considered this section of the Act in the case of Cementation Skanska v Tom Carroll DWT0343. In that decision the Court drew upon the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. In that case Costello J. 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 Court notes that, according to himself, the Appellant was in receipt of advice from the Citizens Advice Service and of some form of legal advice at the material time, although he was not so advised or represented before the Court.

The Court is aware from the submission of the Appellant that he was ill prior to his dismissal and for some significant period after the lodgement of his complaint with the WRC. Similarly, it is accepted that a health pandemic was in being across the Country throughout the period before lodgement of the complaint and for some time thereafter.

The onus is on the Appellant to establish a causal connection between the reason proffered for the delay and his failure to present the complaint to the WRC in time. 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.

In this case the Appellant has asserted that his health situation was a significant circumstance at the relevant time. However, it is clear that he was able to lodge his complaint with the WRC on 21^st February 2021 notwithstanding his health situation, according to himself, persisted until 2022. He was unable, against that backdrop, to clarify when questioned by the Court, how his health situation impeded him in lodging his complaint in the statutorily permitted timeframe.

Similarly, the Appellant, who lodged his complaint using the online facility provided by the WRC, was unable to explain when requested to do so by the Court, how the pandemic inhibited his capacity to utilise that facility at all times in the six months following his dismissal. Indeed, he has not established any change in circumstances which resulted in him having the ability during a persisting pandemic to make a complaint on 20^th February 2021 which he had been unable to make within the statutory time limit of six months.

Having regard to these circumstances, the Court does not accept that a causal connection has been made between the Appellant’s illness or the global health pandemic, and the delay.

The Court concludes that the Appellant has not established a reasonable cause for the delay in making his complaint to the WRC.

Decision

The complaint of the Appellant to the WRC was made out of time and no reasonable cause for the delay in making the complaint in time has been shown. The complaint was therefore made outside of the permissible statutory time period.

The within appeal must therefore fail. The Court consequently affirms the decision of the Adjudication Officer

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CO'R	______________________
27 February 2023	Chairman