ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00011035
Parties:
| Complainant | Respondent |
Anonymised Parties | Production Supervisor | Laundry Services Company |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00014746-001 | 03/10/2017 |
Date of Adjudication Hearing: 06/03/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant is employment since 2011. She has claimed that she has been discriminated against on grounds of gender, and family status. She has sought compensation. The Complainant has sought an extension to the time limit. The Respondent has asserted that the complaint is out of time. |
Preliminary Point Time limit
Complainant’s Position
The Complainant was pregnant at the date of the last discrimination on 24th November 2016. She was also suffering from work related stress as certified by her GP. Her maternity leave was due to start in January 2017 but she had to leave work on 9th December 2016. On 18th August 2016 she had sustained injury while pregnant. She has two claims against her employer for stress and accident at work in addition to this complaint for discrimination.
The birth of her child occurred on 30th January 2017. She had complications and had to have a C section. She was unable to drive a car for a period of six weeks. She was suffering from mental stress because of the discrimination. She was a first-time mother and she needed a period of adjustment together with the injuries that she had sustained while at work. These are substantial reasons why reasonable cause has been established to extend the time limit. She saw a psychiatrist in July 2017. She did not have the courage to consult a solicitor until July 2017.
Her representative cited the Labour Court Case Cementation Scanska v Carroll DWT 38/2003. It stated, “it is for the complainant to show that there were reasons which both explained the delay and afford an excuse for the delay”. “The explanation must be reasonable, that is to say that 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 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 Claimants’ failure to present the claim within the 6-month time limit must have been due to the reasonable cause relied upon. Hence, there must be 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 for he (or she) would have initiated the claim in time”.
In addition, the Claimant is a foreign national and was unaware of specific time limits pertaining to employment. Having provided instruction to her solicitor the Claimant advanced her claim with all due haste once she received legal advice related claims. These are substantial reasons upon which to extend the time limit.
Respondent’s Position
Sec 77(5) of this Act sets out the time limits within which redress for an alleged case of discrimination may be brought. This complaint was presented to the Commission on 3rd October 2017 and her solicitor acknowledged that it was outside the 6 months’ time limit and sought an extension.
The Complainant was not forced to leave work early on sick leave on 9th December 2016 due to work related stress as advised by her GP. She as certified fit for work by her GP and it was because she became emotional at work and was referred to Occupational Health. They recommended that she should not return to work before her baby was born. Therefore, her GP had no input into this. decision and so could not have had any influence in preventing her from submitting her claim in time. Her solicitor referred to an alleged accident sustained at work on 18th August 2016. What actually occurred was that she was taken to the maternity hospital as a precautionary measure and returned home the same day.
She was certified as fit to return to work on 25th August by the hospital. She did not return to work for two weeks being certified by her GP with ‘pregnancy problems’. When she returned to work, she worked normally. This incident was not mentioned in grievances raised on 7th October 2016. Yet her solicitor has alleged that this injury prevented her from making a claim. It is incredible to suggest that this incident inhibited or impeded her from bringing a claim within the statutory timeframe. Her solicitor asserts that this incident added to the birth of her child all add up to reasonable cause preventing her presenting a claim within the time limit. However, the Complainant while pregnant and at work generated a list of grievances which she made in writing and discussed with HR. Such a commitment of time and energy while at work characterises her as a proactive individual in pursuing issues of concern. It is submitted that such time and energy while at work is at least equal to any time preoccupation in the 6 months after 24th November 2016 when she was not at work. During the period 24th November 2016 and January 30th 2017 she could easily have lodged a complaint or consulted a solicitor. They cited the Labour Court case Servier Ireland Industries v Juanita Wilkinson [2017] EDA 1713 as that case has very similar circumstances to this one. In that case the Complainant advanced two grounds in support of her application for an extension 1) she experienced medical complications during her pregnancy 2) she was unaware of the relevant statutory time limit. In that case the Complainant submitted a medical certificate from her GP making reference to an event that occurred some 8 weeks into her pregnancy and hospitalisation for a number of days before she was due to give birth. Both of these grounds have been put forward by the Complainant in this case. The Court “finds in the instant case that the Complainant has failed to establish a link between the difficulties she experienced in the course of her pregnancy and the delay in lodging her complaint under the Act. Furthermore, it is axiomatic as is accepted indeed, by the Complainant –that “ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for a failure to bring a claim in time” (Avery Weight –Tronix v Kindsley DWT1244). On the basis of the foregoing, the Court finds that the Complainant has not established that there was reasonable cause justifying her delay of some 10 months in referring her complaint. So, the Complainant has not established that the alleged impediments set out by her solicitor did in fact prevent her from presenting a claim in time. In fact, it is more likely that reason for the delay was the complainant’s ignorance of the 6-month time limit. Therefore, the request to extend the time limit should be dismissed.
Decision
I note that this complaint was presented to the Commission on 3rd October 2017 therefore the period that may be investigated is 4th April 2017 to 3rd October 2017 unless the time limit is extended to 12 months setting the period for investigation as 4th October 2016 to 3rd October 2017. I note that the last date of discrimination was listed as 24th November 2016.
The Labour Court in the Cementation Skanska V Carroll DWT0342 case stated, “in considering if reasonable cause exists it is for the complainantto show that there are reasons which both explains the delay and afford an excuse for the delay…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 the circumstances known to the complainant at the material time”
The Complainant must be able to explain the delay and afford an excuse for the delay.
Regarding the alleged injury at work in August 2016 I find that the Complainant has failed to form any causal link from that incident and to the prevention of presenting a claim to the Commission.
I find that her absence at that time was certified as being ‘pregnancy problems’ and not an alleged injury.
I also note that there was no reference to this alleged incident in her list of grievances lodged on 7th October 2016.
I note the Complainant’s e-mail to HR Director on 8th October 2016, which stated” at the moment I do not wish to make an official complaint, however I would like to sit down with you and X to get the situation sorted, but I have to let you know if that won’t resolve issue I have no choice to go with this further”.
I find that this demonstrates that she knows how to progress a grievance if she does not have the matter resolved.
I note that the Complainant stated that on 24th October 2016 that the Respondent HR Director told her she did not need to go to a solicitor. I note that the Respondent asserted that she responded to a query raised by the Complainant that she would have to consult a solicitor but that the matter in question was her maternity rights during maternity leave and she didn’t need a solicitor for that.
I find that this shows that the Complainant was contemplating seeking advice from a solicitor.
I note that the Complainant advised the hearing that she took photos of the workplace in November 2016, in case she needed them.
I find that this demonstrates that she was contemplating some form of action against her employer
I note the conflict of evidence regarding her leaving work on 9th December.
I find that Occupational Health made no reference to stress but recommended that she should not return to work before the birth of her child.
I find that this supports the Respondent’s position and no medical certificate dated 9th December was presented to the hearing.
I note that her solicitor has advised that she was a foreign national and did not know Irish employment law and was not aware of time limits in bringing a case to the Commission.
I find that it is well established that ignorance of the law is not a defence.” ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for a failure to bring a claim in time” (Avery Weight –Tronix v Kindsley DWT1244).
Laffoy J. in Minister for Finance –v- CPSU and Others 2007 18ELR36 stated to the effect that ignorance of one’s legal rights cannot in law constitute a reasonable cause for not observing a statutory time limit.
I also note that the Complainant consulted her solicitor in July 2017, albeit outside the 6 months’ time limit but no complaint was presented to the Commission until 3rd October 2017.
I note that the Complainant referred to seeing a psychiatrist in July 2017 but I find that that was also outside the initial 6-months limit.
I have considered the written and verbal submissions made at this hearing.
I find that the Complainant has failed to establish reasonable cause to extend the time limit.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Therefore, I have decided that the complaint was presented outside the time limit allowed and I do not have jurisdiction to deal with this complaint.
Dated: 31st July 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Time limit |