FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : FOREVER THERAPIES LIMITED - AND - MS LAURA MCNAMEE DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00015842 dated 17 August 2020. The Respondent’s Notice of Appeal was received by the Court on 25 September 2020; the Complainant’s was received on 26 September 2020. The Court heard the within appeal and cross-appeal (together with an appeal by the Complainant under the Organisation of Working Time Act 1997 – WTC/20/32) in Dublin on 31 August 2021. The substantive complaint under the 1998 Act includes allegations of indirect discrimination on grounds of disability, failure to make reasonable accommodation, harassment and victimisation. The Complainant suffers from endometriosis and epilepsy. The latter condition means the Complainant is unable to obtain a driver’s licence and relies entirely on public transport. BRIEF SUMMARY OF PARTIES' WORKING RELATIONSHIP: The Complainant commenced working for Ms Georgina Tully on a part-time basis as a Wholistic Therapist in 2009. At that time Ms Tully operated as a sole trader. Ms Tully registered a business name – Forever Therapies – in 2010 and subsequently incorporated her business as Forever Therapies Limited in July 2017. The Complainant ceased to be offered work by the Respondent in mid-December 2017. For the duration of her service with the Respondent and its predecessors, the Complainant has also had her own business providing holistic therapies to private clients. Likewise, during the entire period of the relationship, the Complainant engaged with Ms Tully, Forever Therapies and Forever Therapies Limited as an independent contractor. Having incorporated her business in July 2017, Ms Tully sought to update the terms of engagement then in place with her team of self-employed, part-time therapists. The Complainant did not agree to sign a new contract for services with Forever Therapies Limited and, in September 2017, she made a referral to the SCOPE section of the Department of Employment Affairs and Social Protection seeking a determination of her employment status. On 29 May 2018, SCOPE issued a determination that the Complainant’s working arrangements with the Respondent and its predecessors had been consistent with a contract of service. That determination was confirmed by a Social Welfare Appeals Officer on 24 April 2019. The Respondent was notified in September 2017 that the Complainant had made a referral to SCOPE. A meeting took place on 17 October 2017 at which the Respondent’s representatives offered to engage the Complainant on a contract of service or a contract for services. The Complainant did not elect between either as she intended to await the outcome of her referral to SCOPE. In December 2018, the Complainant served a form ES1 on the Respondent. The Complainant was not offered work by the Respondent after 13 December 2017. PRELIMINARY ISSUE: The Complainant referred her complaints under the Act to the Workplace Relations Commission on 9 July 2018. The Complainant did not perform any services on behalf of the Complainant after 13 December 2017. The most recent example of alleged discriminatory behaviour cited by the Complainant occurred at the meeting of 17 October 2017. Her complaints were, therefore, referred outside the six-month limitation period. The Complainant was bereaved of a very close family member - whose health had begun to deteriorate from January 2018 onwards –on 2 July 2018. The Complaint submits that she was dealing with the SCOPE referral in January 2018 and that, combined with her close family member’s illness, rendered her unable to referral complaint under the Act to the Workplace Relations Commission. She submits, therefore, that her circumstances constitute reasonable cause for her delay in referring her complaint until 9 July 2018. 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 DWT0338Cementation 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 Complainant 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 Complainant at the material time. The Complainant’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 Complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he/she 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 inMinister for Finance v CPSU & Ors[2007] 18 ELR 36.The test formulated inCementation Skanska (Formerly Kvaerner Cementation) v Carrolldraws heavily on the decision of the High Court inDonal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] 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 Complainant would have been presented the complaint 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. Correspondence dated though December 2017 and January 2018 from the Complainant to the Respondent was opened to the Court. The Complainant’s evidence is that she was fully engaged with the SCOPE process in January 2018 and deliberately delayed referring her employment rights complaints to the WRC until after the SCOPE process had concluded. As mentioned previously, SCOPE issued its determination (subsequently appealed by the Respondent) on 29 May 2018. Having considered the Complainant’s submissions and evidence, the Court is of the view that the operative reason for the Complainant’s delay in referring her complaint was her decision to await the outcome of her application to SCOPE. DECISION: The Court finds that the Complainant does not meet the threshold outlined inCementation Skanksawhereby the statutory timeframe within which she is permitted to refer her complaints under the Act can be enlarged for reasonable cause. The Respondent’s appeal from the Adjudication Officer’s Decision, therefore, succeeds and the Complainant’s appeal is unsuccessful. The Decision of the Adjudication Officer is, accordingly, set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary. |