Complainant

Respondent

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Valbone  Delijaj

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Complainant

Respondent

Anonymised Parties

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  Self

Olivia Hogan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 77 of the Employment Equality Act, 1990

CA-00070664-001

08/04/2025

The Complainant was employed as a childcare worker with the Respondent from 17/04/2023 until she submitted her resignation on 05/05/2024.  She was paid €14.00 per hour and her hours of work varied.  She submitted her complaint to the Workplace Relations Commission on 08/04/2025.

The Respondent denies the claims and submits that the Complainant was well looked after at all times during her employment.

The Complainant gave evidence on affirmation.  She agrees that she submitted her complaint to the WRC on 04/04/2025 and submits that her delay was due to the upset she was experiencing her after she left her job on 08/04/2025. The Complainant also explained that she was told by the WRC that she should submit her complaints.

The Complainant gave evidence in relation to the substantive matter.  She confirmed her understanding that any decision on the preliminary matter in relation to time limit would have a consequential bearing in relation to the substantive matter.

Ms Olivia Hogan and Mr Sean Dowling gave evidence on oath on behalf of the Respondent.  It was confirmed on behalf of the Respondent that they understood that the wrong legislation had been impleaded on the complaint form and no objections were raised in relation to having the complaint heard under the Employment Equality Act, 1998.

The Respondent refutes that the Complainant was upset after having left her job.  She had a lot of text message contact with the Respondent and never mentioned any upset or discrimination.  While the Respondent also gave evidence in relation to the substantive matter it was confirmed that they understood that a decision on the preliminary matter of time limits would determine whether or not a decision was required on the substantive complaint.

The first issue to be decided is in relation to the time limits for submitting a complaint.

In this case it is accepted that the Complainant submitted her complaints to the WRC on 08/04/2025. That is a period of 11 months and 4 days from the date of her resignation. There was no application for an extension of time made at that time or at the hearing.  An Adjudication Officer can extend that time period to 12 months if “reasonable cause” is shown.

 The well-established case in relation to “reasonable cause” was fully considered in Cementation Skanska v Carroll, DWT 38/2003 which was opened at the hearing: 

“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.”

At the hearing the Complainant accepted that she was significantly out of time, and she confirmed that she understood that a decision on the preliminary matter would determine whether or not the substantive case would be heard.

Section 77 of the Employment Equality Act [1998-2022] provides as follows in relation to the time limit for making a complaint to the WRC. A similar provision is contained in Section 41(6) of the Workplace Relations Act [2015 - 2021]:

“77. A person who claims—

(a)   to have been discriminated against or subjected to victimisation……

(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.

(5)(b) On application by a Complainant Director General of the Workplace Relations Commission……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”.

The test to be applied in extension of time applications under the Acts, is that formulated by the Labour Court in Cementation Skanska (formerly Kvaerner Cementation) v Carroll (DWT0338) [cited above] and in other cases.

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

“It is 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 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 O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, 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.”

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court outlined in Department of Finance v IMPACT [2005] E.L.R. 6.  that it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it.  This imports a clear objective standard into the test.

As this preliminary point goes to the jurisdiction of the Adjudication Officer, I have decided to deal with it as a preliminary issue.  I have taken cognisance of the decision of Mr Justice Charleton in Adigun v The Equality Tribunal [2015] IESC 19 at paragraph 15 wherein he stated the following:

“Even apart from the subsection quoted above, it is within the scope of fair procedures before any judicial or quasi-judicial body for an issue to be isolated and tried in advance of the main hearing provided that can be done fairly…  Hence, even apart from legislative provisions, it would make sense that once the issue is raised, it should be determined in advance of what was likely to be a substantive hearing.  The resources of the courts and tribunals are limited.  It is a pointless exercise to engage in a trial of fact over several days when whether or not the resolution of such facts may yield any redress to the claimant looms is clearly the first hurdle that he or she must cross.  That can be fairly isolated and tried in advance”.

The Complainant has not come close to the threshold required and is therefore unable to satisfy the criteria of reasonable cause.

Her only explanations for delaying in submitting to the WRC was that she was upset after having to resign her job and that the WRC informed her that she should submit her form.

While is understandable that having to leave one’s job is upsetting, but it is not sufficient to ground the extension she seeks to bring her complaint within jurisdiction, and she must accept the consequences of her decision not to submit her complaint in time.  I do not have jurisdiction to hear this complaint.

I have decided that I do not have jurisdiction to hear this complaint.

Reasonable cause. Preliminary matter.