FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : A COMPANY (REPRESENTED BY CALLAN TANSEY SOLICITORS) - AND - A WORKER (REPRESENTED BY DENIS F. MCDWYER & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal under Section 77(12) Of The Employment Equality Acts, 1998 to 2015
BACKGROUND:
2. This is an appeal under Section 77(12) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on the 1st of December 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by a Company (the Respondent), against the decision of the Equality Tribunal to extend time for the bringing of a complaint by a worker (the Complainant) under the Employment Equality Acts 1998 to 2011 Act. The complaint is on the gender ground and concerns an allegation of sexual harassment.
The Complaint was presented to the Equality Tribunal on 15thJuly 2013. The last occurrence of the discrimination alleged was on 31stOctober 2012. The time limit in respect of the claim expired on 30thApril 2013.
In his decision the Equality Officer recorded four reasons relied upon in support of the application to extend time, namely: -
1. At the time of the impugned incident she was living alone in Ireland with her young child,2. She was afraid that if she complained she would lose her job,
3. She was extremely upset by the incident and it was some time before she could talk about it,
4. Her partner has recently arrived in Ireland and she now feels able to pursue the matter.
Reasonable Cause Relied Upon
At the hearing of the appeal the Complainant gave three reasons for the delay, namely:
1. That following the incidents giving rise to the complaints she suffered feelings of shame and anxiety at what occurred,
2. She was afraid that she would lose her job if she complained,
3. She did not know of the time limit in which she was required to make a complaint.
The Complainant gave evidence to the effect that another employee of the Respondent had taken proceeding in an employment related matter in Northern Ireland. It was her evidence that the principal of the Respondent had stated in her presence that the employee concerned would never work again. The Complainant told the Court that she had heard the principal of the Respondent repeat statements to that effect on subsequent occasions. The Complainant also told the Court that she was the only woman employed in the location in which she worked and that she felt unable to speak to her colleagues about what occurred. She did speak to her brother and her family about her experiences and she was eventually persuaded to consult a solicitor so as to prevent others being subjected to similar treatment. The Complainant is not Irish and she told the Court that she did not know about the existence of a time limit within which she was expected to make a claim under the Act. She was first informed of the time limit when she consulted her solicitor.
The Law
Section 77(5)(b) of the Act provides, in effect, that where reasonable cause is shown for a delay in presenting a claim under the Act the 6 month time limit at subsection (4)(a) of that section may be extended to a period not exceeding 12 months. The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination WTC0338 (October 28, 2003)CementationSkanska (Formerly Kvaerner Cementation) v Carroll. Here 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.
Conclusions
The Court notes that the reasons relied upon for the delay have not remained consistent since the application for an extension of time was made to the Equality Tribunal. The application to the Equality Tribunal was made on the Complainant’s behalf by her solicitors by letter dated 11thJuly 2013. In relevant part this letter stated as follows: -
- “We are instructed by our client that the last incident took place in October of last year which is outside the six month period. Our client instructs us that she did not make a complaint until this time. At the time of the alleged incidents she was living in Ireland on her own with her six year old son. She was afraid that if she complained she would lose her job
She instructs us that she was extremely upset by the alleged incidents and has only recently been able to talk to anyone about them. Her partner is now in Ireland and she feels now that she is able to pursue this matter.”
While the Court cannot form any view on the merits of the Complainant’s substantive claims, there is no doubt that a woman who experienced the forms of sexual harassment alleged would suffer emotional sequelae which could inhibit her in initiating proceedings promptly or within the time limit. However, the complaint continued to work in the employment, apparently without incident, for some eight months after the last incident complained of without taking any steps to initiate her claim. During that time she had the support of her partner and her family with whom, according to her evidence, she discussed the matter.
While any employee who makes a complaint against his or her employer may fear adverse consequences in terms of their employment the law provides full protection against any form of victimisation and such concerns cannot in themselves justify a delay in complying with a statutory time limit. While the Court accepts that the Complainant may not have known of the time limit, it is well settled that ignorance of one’s legal rights and responsibilities cannot be accepted as an excuse.
Having regard to all the circumstances of this case the Court has come to the conclusion that the Complainant has neither explained the delay in initiating her claim nor has she afforded a justifiable excuse for the delay. In these circumstances the Court does not believe that the Complainant has shown reasonable cause for the delay and an extension of time cannot be granted
Outcome
The Respondent’s appeal is allowed and the decision of the Equality Tribunal is set aside.
Signed on behalf of the Labour Court
Kevin Duffy
__14th December 2015______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.