SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
SUNGARD CONSULTING SERVICES (IRELAND) LIMITED
(REPRESENTED BY LEMAN SOLICITORS)
- AND -
Chairman: Mr Hayes
Employer Member: Ms Connolly
Worker Member: Mr Shanahan
1. Appeal of Adjudication Officer's Decision.
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with the Employment Equality Acts, 1998 to 2015. A Labour Court hearing was held on 15th June, 2017. The following is the Determination of the Court:
This is Gail Dempsey’s (“the Complainant”) appeal against a decision of an Adjudication Officer ADJ-00002274 CA-00001867-001 that was issued to the parties on 15 December 2016. The Adjudication Officer dealt only with a preliminary issue i.e. whether or not the Complainant had established reasonable cause to permit her to extend time to submit a complaint of alleged discrimination contrary to the Employment Equality Act 1998 (“the Act”) on the age ground outside the statutory six-month time limit. The Equality Officer found that the Complainant had not established reasonable cause for her delay in referring her complaint and she refused her application for an extension of time. The Complainant has appealed from that decision to this Court. The decision relates only to this preliminary issue and contains no findings on the substantive matter of the complaint. The substantive claims were not opened to the Court.
Timeline of Relevant Events
The Complainant was employed in 1999 by Delphi Technologies in 1999. That company was acquired by SunGard Consulting Services (Ireland) Limited (SCS) in 2008. This in turn was acquired by FIS on the 30thNovember 2015. SCS subsequently closed its operations in Ireland in December 2015 after the Complainant’s employment ended.
The Complainant was employed by SCS as a Senior Analyst/Programmer and worked mainly on client sites. At the time of her retirement she was working at a financial institution in Dublin.
The Respondent submits that it terminated the Complainants employment on reaching normal pension age of 65 in accordance with the terms of her contract of employment. The Complainant submits that the decision to terminate her employment amounts to discrimination on the age ground.
Timeline of the Complaint
The Complainant’s employment was terminated on 19 June 2015. The complaint was filed with the Workplace Relations Commission on 11 January 2016 23 days outside the statutory time limit.
The Complainant makes application for an extension of time for the bringing of her complaint.
In support of the application the Complainant makes the following points
•Her employment contract on which the Respondent relies contains a clause that states that normal retirement age is 65 years. She submits that the contract was 16 years old and could no longer be relied on given intervening legislative developments prohibiting discrimination on the age ground.
•In 2008 she had a very acrimonious disagreement with Mr RL who at that stage was her line manager. That disagreement was never satisfactorily resolved and relations between the two employees remained strained for the remainder of her employment with the Respondent. At the time of her forced retirement on reaching age 65 Mr RL held the position of Managing Director in the Company. She submits that the difficult working relations between them influenced the decision to enforce the retirement terms of the contract of employment.
•Again in 2008 she had a disagreement with another manager Ms SW regarding her annual review. The review contained comments that she found insulting. She holds the view that Mr RL could only have been the source of those comments. She submits that while she complained to the then Managing Director and received some reassurance from him the process was difficult and Mr RL and the Managing Director were also friendly with each other.
•In 2012 a contract assignment on which she had been working ended and she returned to the head office. After 8 days she was notified that she was being placed on a 2 day week until another contract assignment became available. She objected to this course of action and was quickly reassigned to another site on full hours. She felt this development must be viewed in the context of the 2008 disagreement as by way of contrast many members of staff were retained in the Head Office on full time contracts for months on end.
•In 2014 she initiated a formal grievance against Mr RL. This was processed through procedure. However when her concerns were not addressed in the early phases of the procedure she was advised that her appeal lay to Mr RL himself. She found this incomprehensible. At that point she discontinued her grievance and accepted the compensation offered.
•She submits that she raised the issue of ageism and advised the Company that she was unhappy with the decision to forcibly retire her at age 65. However in light of her previous experiences she felt the trauma of another grievance procedure was not an option.
•She found it embarrassing that her age would become public knowledge in both the Company and the client site on which she was working. As a consequence she asked that her privacy be respected and that her departure be published as her decision to leave rather than having reached retirement age.
•She states that she believes that HR did not act alone in applying the retirement age but was influenced by the Managing Director and that her age was used to get rid of her from the Company.
•She says that she seriously considered referring a complaint under the Act in June 2015 but decided against doing so for 3 reasons
- oHer previous unpleasant and unsatisfactory experience of taking grievance procedures within Sungard
oThat the outcome of any complaint she had taken might have resulted in her reinstatement which would not have been tenable for her at that time.
oAt the time she was at no financial loss. She had secured employment with one of the contractors to which she had been assigned and she was unaware of the redundancy talks that were in contemplation at that time.
However around Christmas 2015 she met an ex colleague who told her that the company was closing and that all employees were in line for substantial redundancy payments. At that point she realised that had she not been force retired she would have also been eligible for such a payment. She formed the view that the decision to retire her was taken in contemplation of that development and was designed to deprive her of the benefit of the severance payment.
At that point she decided to file a complaint. However by the time she contacted her solicitor and filed her complaint she was 23 days out of time.
She submits that taken in its full context the delay is short and can be explained. She submits that when she made up her mind, within the six months, to file the complaint she acted as quickly as possible allowing for the time of year and the difficulty she experienced in contacting her solicitor and completing the paperwork over Christmas,
She asks the Court to extend time.
The Repondent submits that the Complainant has a contract of employment that makes provision for retirement at age 65. She raised no issue with that contract during her employment or within the statutory time limit for bring a complaint under the Act.
She was notified in January 2015 that her retirement date would fall in June. She was offered and accepted a place on a pre-retirement course. She was accommodated with her requests to have the reason for her departure disguised. A clause restricting her capacity to work for any company client within six months of her leaving the Company was waived to enable her take up contract employment with the client company.
It submits that the Company behaved reasonably towards her and in accordance with her contract of employment.
It rejects that the decision to retire her was taken in order to avoid paying her a severance payment. It submits that the decision to retire her was notified to her in January 2015. No discussions regarding company closure and or severance payments commenced at an international level until March/April of that year.
It rejects the Complainant’s contention that historic disputes with members of management including the Managing Director played any part in the decision to retire her.
It submits that the Complainant made a measured decision not to pursue a complaint under the Act within the statutory time limit and subsequently changed her mind but did not act on that decision in good time. It submits no reasonable grounds for an extension of time has been made out by the Complainant.
- oHer previous unpleasant and unsatisfactory experience of taking grievance procedures within Sungard
Discussion and Decision
The import of “reasonable cause” as used in section 77(5) of the Act (and in other employment-related enactments) has been the subject of some consideration by this court.
The Court’s jurisprudence is conveniently summarised in Salesforce.com v Alli Leech EDA1615 wherein the Court stated:
- “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 DWT0338 Cementation Skanska (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.
In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986,. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors  18 ELR 36.
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  ILRM 30. Here Costello 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.
It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, 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. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”
Having made that decision she changed her mind in December 2015 when she became aware of events that took place in the Company after her retirement. At that point she formed the view that she had been hard done by and sought to commence proceedings. However the time for bringing proceedings was running out. Nevertheless she still had time to commence proceedings within the statutory time limit. However she delayed and the time limit expired.
In those circumstances the relatively low bar that the statute sets has not been cleared by the Complainant. Nothing, other than her own decision, prevented her initiating the complaint within the statutory time limit. Changing one’s mind within the statutory time limit is a perfectly natural development as time allows ones perspective on events to change. However it is not on its own the basis for extending time.
Accordingly the Court affirms the decision of the Adjudication Officer. The appeal is not allowed.
The Court so determines.
Signed on behalf of the Labour Court
29th June 2017______________________
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.