EDA2553

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00036748 (CA-00047852-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts,
1998 to 2015 on 22 August 2024. A Labour Court hearing took place on 20 May 2025.
The following is the Determination of the Court

DECISION:

1Background to the Appeal

 This is an appeal by the Complainant against decision of an Adjudication Officer (ADJ-00036748 CA-00047852-001 dated 17 July 2024) under the Employment Equality Act 1998 (‘the Act’).   The Adjudication Officer held that her complaint of discrimination on the disability ground was not well founded.

 The complaint was lodged with the WRC on 28 December 2021. The cognisable period for the purpose of the Act is 29 June 2021 to 28 December 2021.  The Complainant’s last day in attendance at work was 6 January 2021. The most recent act of discrimination identified on the WRC referral form was 6 January 2021. The Complainant resigned her position 12 April 2022.

2 Summary of Complainants submission

Mr Kinsley BL on behalf of the Complainant submitted that contrary to the decision of the Adjudication Officer the complaint is not out of time. He went on to state that should the Court find it is out of time there is reasonable cause for an extension of time. It is the Complainant position that the discrimination continued beyond the date she had identified on her referral form and that she is not bound by that date. The Complainant commenced employment with the Respondent on 14 September 2020 as a general operative. The Complainant suffers from depression, anxiety and mental health difficulties and is unable to wear a face covering as a result of this condition. In January 2021 the Respondent introduced a mandatory requirement regarding face covering which the Complainant submits was discrimination as she could not comply with same due to her disability. Mr Kinsely BL submitted that the act of discrimination and the failure to offer reasonable accommodation continued throughout 2021 and 2022 and therefore the complaint is in time. The discrimination that the Complainant was subjected to was a continuum, as provided for in the Labour Court case of County Cork VEC v Hurley EDA 1124.

 Without prejudice to that position, it was also submitted that reasonable cause existed for an extension of time. Mr Kinsley BL submitted that the express provisions of section 77 (5) (b)of the Act mean that the Court must at the point of the application to extend, consider whether reasonable cause exists for the extension of time. He went on to say that section 77(5) (b) of the Act is different  to section 41 (8) of the WRC Act 2015 and therefore reliance on the Cementation Skanska v Carroll DWT 38/2003 is not appropriate as that case was in respect of section 27 (5) of the Organisation of Working Time Act which is similar to the test in section 41 (8) of the 2015 Act.

He submitted that the Complainant had suffered significant mental health difficulties throughout 2021, and this had impacted on her ability to engage with legal representatives and seek to make a claim.  Mr Kinsley opened to the Court a medical certificate dated 12 January 23 which stated “Grazyna was unable to complete any forms for the WRC from 7 January 2O21 to and including 27 October 2021”,a certificate dated 12 October 2022 confirming that Complainant had attended at an appointment and diagnosed with a depressive episode and antidepressant were prescribed, and a medical certificate dated 20 June 2023 confirming that the Complainant had been treated for reactive depression from 9 August 2018 until 22 August 2018.

 On 4 May 2021 the Complainant wrote to the Respondent as follows “Eileen Do you know where I will be work when I will back? In Cook? And masks still mandatory? The Respondent replied on the same day stating, “Cook for now masks are mandatory.” The Complainant also attended the Respondents Occupational Health Medmark on 12 July 2021 and 12 October 2021 and on both occasions, she was certified unfit for work. Mr Kinsley BL stated that it was not disputed that the Complainant had a disability.  The requirement to wear a mask was an ongoing requirement and therefore the discrimination was ongoing.

 Mr Kinsley’s BL final submission relying on the judgment of Bolger J in the case of Padraic Hanley and PBR Restaurants LTD trading as Fish Shack café [2024] IEHC 662 submitted that time limits cannot be dealt with as a preliminary issue and the Court is obliged to hear the whole case once the Complainant indicates that they are not agreeable to the issue being considered as a preliminary issue.  

3 Summary of Respondents submission

Mr Ledwith BL on behalf of the Respondent submitted that the Complainant’s claim is outside of the statutory timeframe permissible pursuant to Section 77(5)(a) of the Act and she has not established “reasonable cause” for the delay in submitting her claim.  He submitted that section 77(5) of the Act (as amended by section 41 (6) of the Workplace Relations Act 2015) sets out the time limits and that an extension of time must be for reasonable cause. It was his submission that the established test for deciding if an extension of time should be granted is set out in Labour Court case Cementation Skanska v Carroll (DWT0338). It provides that for reasonable cause to succeed it must explain the delay and afford an excuse for the delay. The Complainant in her submission to the WRC dated 26 January 2022 stated that the reason for the delay was health issues and provided numerous medical certificates including one dated 20 January 2022 that said she had been absent from work since 6 January due to medical investigations and mental health issues.  The medical certificates indicate she is unfit for work, but this does not establish that she was prevented from submitting her claim to the WRC. She has failed to establish a causal link between her illness and her failure to submit her complaint in time.

 During the relevant period the Complainant remained in touch with the Respondent. Along with the emails referenced by the Complainant in her submission, there were other emails as follows; email of 21 March 2021 where the Complainant states that she is currently in Poland and had contracted Covid and that she had to isolate but hoped she would be back soon, and email of 12 May 2021 where she states as follows “Hi Eileen I am going back to work 20 May. For this week I have med cert unfit to work. I still have dizines and its vertigo problem, so I got some medicine today.”  In this correspondence there is no mention of an issue with wearing a facemask or having difficulties as it clearly indicates an intention to return to work the following week.

The Complainant attended the Respondent’s Occupational Health on 12 July 2021where it was noted that she was absent from work due to a combination of medical difficulties and active medical symptoms due to underlying health issues, it also noted that she raised some concerns about the requirement to wear a mask in work but that was not the reason for her continued sick leave. A review in eight weeks if she presented fit for work was recommended. A further review was carried out on 12 October 2021 which noted that her medical difficulties were not sufficiently stabilised for working life and that she remains unfit for work.

 Mr Ledwith BL stated that they are relying on the seminal case of Minister for Finance v CPSU and other Unions [2007] 18 E.L.R.36 where the learned judge held that the onus was on the Complainants to establish not only the reasons which explained the delay but also that those reasons afforded a justifiable excuse. He also cited Murphy v Citizens Information Call Centre Ltd UD59/2005 and Dublin City Council v Laurence Skelly DWT212 in support of the extent of proof required to rely on reasonable cause. In terms of the submission that there was a continuum of ongoing discrimination the Respondent relies on Hurley v County Cork VEC EDA 1124 and notes that the Complainant has not identified a breach during the cognisable period and therefore cannot rely on a continuum.

Mr Ledwith BL addressed the Complainant’s submission that the case of Padraic Hanley and PBR Restaurants LTD trading as Fish Shack café [2024] IEHC 662 dictated that time limits cannot be dealt with as a preliminary issue, and the Court is obliged to hear the whole case once the Complainant indicates that they are not agreeable to the issue being considered as a preliminary issue.   It was his submission that was an incorrect interpretation of what the judgment stated as Bolger J in that case at paragraph 16 clearly states” where a party to an appeal does not agree to the Court determining a preliminary issue (other than in relation to a jurisdictional issue such as time where there is clear jurisdiction to determine jurisdiction as a preliminary issue)”

The issue in the case to hand is a time limits issue and the Court has jurisdiction to hear it as a preliminary issue.

4 Relevant Law

Section 77 (5) of the Employment Equality Act under the heading forum for seeking redress states:

(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 F122[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.

 (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

5 Discussion and Decision

It is not in dispute that the Complainant’s last day in work was 6 January 2021 and that the act of discrimination that the Complainant is alleging, is that she was required to wear a face mask. It is the Complainant’s submission that this was discrimination on the disability ground. It was not disputed that the Complainant had a disability. The Complainant in her referral to the WRC identified 6 January 2021 as the most recent act of discrimination. In order for her complaint to fall within the time limits set out in section 77(5) of the Act a complaint would have had to be lodged no later than 5 July 2021. The complaint was lodged on 28 December 2021.

 It is not disputed that the Complainant was on certified sick leave during that period and that the Occupational health report from July 2021 clearly states that her absence was not linked to the mask issue.

 Both parties agreed that the relevant case law in respect of a continuum of discrimination is Hurley v County Cork VEC EDA 1124. In that case the Court states that in order for it to consider a continuum there has to be a breach during the cognisable period. As there is no breach of the Act identified during the cognisable period in this case, the Court cannot consider if there was a continuum of discrimination outside of that period.

 The final issue the Court had to consider was whether or not as provided for in the Act there was reasonable cause that would allow it substitute 6 months for a period not exceeding 12 months which would bring the complaint in time.

The Complainant in support of her submission that she should be granted an extension of time for reasonable cause submitted a medical certificate dated 12 January 2023 which stated, “Grazyna was unable to complete any forms for the WRC from 7 January 2O21 to and including 27 October 2021”. However,  also opened to the Court was correspondence form the Complainant to the Respondent during the same period covered by that medical certificate, where the Complainant confirmed that she had travelled to Poland in March 2021 to source some medical help for a family member,  emails of 4 May 2021 querying where she would be working on her return to work and email of 12 May 2021 confirming she was still on certified sick leave as she had vertigo but would be returning to work on 20 May 2021. The Complainant also attended Occupational Health on 12 July 2021 and 12 October 2021 and there was nothing in either report that suggested that the Complainant would have difficulty completing a form during that period.

From the Courts perspective it was not possible to reconcile the real-time record through emails and visits to Occupational Health of the Complainants activities during the period January to October 2021, with the medical certificate dated 12 January 2023. On that basis the Court decided to rely on the real time documentation and concluded that if the Complainant could travel to Poland and engage by email with the Respondent during the period there was no justifiable excuse for not submitting her complaint on time. The Court determined that the Complainant had not established reasonable cause for the delay in submitting her complaint, and therefore her complaint is out of time.

The appeal fails. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
23 June 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan
Ralph, Court Secretary.