Complainant

Respondent

Parties

Gerard  Woods

Applus Inspection Services Ireland Ltd

Representatives

Michael Monahan Solicitors

P Twomey B.L. instructed by Kate McMahon & Associates Solicitors

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-00066402-001

01/10/2024

The complaint was lodged to the Workplace Relations Commission on 1st October 2024 relating to a discriminatory dismissal in contravention of the Employment Equality Acts, 1998-2015. The dismissal in question occurred on 7th February 2024.

It was not disputed that the within complaint was submitted outside of the statutory six-month period. The respondent’s position was that the complainant’s solicitor had been instructed within the six-month period and that the correct complaint should have been submitted within that timeframe.

The complainant’s representative acknowledged the unfortunate situation that occurred in terms of the incorrect complaint being lodged within time and the within complaint being lodged out of time. The complainant’s representative stated that an extension of time should be granted in the interest of fair procedures and natural justice and on the basis that the intention was always to submit a complaint of discriminatory dismissal.

The within complaint was lodged to the WRC on 1st October 2024. The complaint replaces an Unfair Dismissal complaint that was lodged on 1st August 2024 and subsequently withdrawn on 24th October 2024.

The Unfair Dismissal complaint was in time as it was lodged within six months of the dismissal date. However, the within complaint for discriminatory dismissal submitted on 1st October 2024 was referred outside of the six-month statutory time limit.

The complainant’s representative argued that the intention had always been to submit the discriminatory dismissal complaint on 1st August 2024 but that an unfair dismissal complaint had been lodged instead through inadvertence. The complainant’s representative stated that the solicitors practice was closing on 1st August 2024 for the summer holidays and the error occurred due to work pressures.

The Applicable Law

Time Limits

Section 77(5)(a) and (b) of the Employment Equality Act, 1998 provides as follows:

77(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 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.

Extension of time request

The complainant’s solicitor sought an extension of time on the basis that it was always the intention to lodge the discriminatory dismissal complaint. The representative continued in his application by stating that the error was unfortunate, but August was a “strange month” in the legal profession and the extension of time should be granted in the interest of fair procedures and natural justice.

For the extension of time to be granted the complainant must show that there were reasons that both explain and provide an excuse for the delay in submitting the complaint.

Reasonable cause

The test for establishing if reasonable cause is shown for the purpose of granting an extension of time is that formulated in Labour Court Determination No: DWT0338 –Cementation Skanska and Carroll which states as follows: -

“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”.

I note that when the complainant had the benefit of legal advice, his complaints were within time. Unfortunately, the complainant withdrew the unfair dismissal complaint that was in time and the discriminatory dismissal complaint was referred outside of the six-month statutory time limit.

While I empathise with the complainant, the complaint to be adjudicated on is out of time and the reasons put forward in seeking an extension of time do not, in my view, meet the test as set out in Cementations Skanska v Carroll for the late referral of the complaint. Accordingly, I do not grant the extension of time sought and find that the complaint is out of time.

Having considered the submissions of both parties, I find that the complaint is out of time and is therefore statute barred.

Complaint out of time