1. EDA1614, Congregation of Dominican Sisters of the Rosary and St Catherine of Siena, Otherwise Santa Sabina House v Tariro Mutyandasvika 

Issues: Complaint not out of time, Equality Officer erred

This was an appeal of an Equality Officer Decision that the complaint was out of time.  The original Decision, DEC-E2015-076, is remarkable in its confusion as to the relevant dates.  Due to this confusion a tentative understanding of the Equality Officer’s conclusion is that the phone calls on 28 and 30 November 2012 between the complainant and her employer were reiterations of what the occupational health physician had concluded on 9 November 2012, that the complainant was permanently unfit for manual handling duties.  Apparently no alternative duties were available for the complainant and this may have been previously put to the complainant following previous assessments although insufficient information is available.  There is no mention of a contemporaneous consideration of accommodation possible at the relevant time.

The Labour Court, in a relatively short Decision, stated:

The Court finds that the gravamen of the Complainant’s case is that the most recent alleged act of discrimination on the Respondent’s part took place on the 30thNovember 2012 and that she submitted a complaint to the Tribunal on 17 December 2012 some few weeks later. On that basis the Court finds that the complaint is in time and is not statute barred. In so deciding the Court has not considered and has made no decision on the merits of the complaint which is properly a matter for investigation and decision by the Workplace Relations Commission.

The Court allowed the appeal, set aside the Equality Officer’s Decision and remitted the case back to the WRC for investigation and Decision.

The interesting substantive allegations being made by the complainant appear to be that she was not provided with an accommodation (presumably some form of reasonable accommodation) to enable her return to work because of her race (colour) when others of a different race (colour) were accommodated.

2. EDA1615, Salesforce.com v Alli Leech

Issues: Extension of time to make complainant, reasonable cause – test to be applied

The matter before the Labour Court on appeal was whether the Adjudicator was correct in granting an extension of time at first instance.  The complainant was unhappy with a promotion competition in February 2014.  She became pregnant and went on maternity leave in September 2014.  Ten days after the birth of her child in November 2014 the complainant broke her wrist and required opioid painkillers.  The Adjudicator accepted those reasons as amounting to reasonable cause and extended the time for the submission of the complaint which was made exactly a year following the most recent alleged discriminatory act.

The Court usefully goes through a detailed consideration of reasonable cause including previous Labour Court and High Court Decisions and concludes that the appropriate test is

1. The applicant must identify the reason relied upon which provides a justifiable excuse for the delay,
2. The applicant must establish a causal link between the reason offered for the delay and her/his failure to present the complaint in time,
3. Satisfy the Court as a matter of probability that the complaint would have been on time but for the factors being relied on.

The Court went on to say it is the actual delay that must be explained and if the factors relied upon ceased before the complaint was presented this may undermine the arguments.  Likewise subjective arguments will not suffice.

In this case the Court found that the complainants records did not support her assertions and “concluded that the Complainant has failed to establish a causal connection between the factors relied upon by her and the delay in presenting the within claim”.

Why is this case of interest?

• It usefully sets out the objective test a complainant must meet in order for an extension of time request to succeed.

3. ADJ-00000449

Issues: Equal Status, extension of time, test for dispensing with notification requirement

The complainant in this case was diagnosed with a rare bone disease and asserted he required accommodations.  He also asserted he was continuously put down by the Principal and degraded in front of the whole class.  The respondent asserted that the complainant’s claim was time barred.  The Decision refers to the claim being submitted as an Employment Equality claim.  This may be an error as the matter of whether the claim was lodged under the correct statute is not further addressed.

The Adjudicator considered the notification period which can be extended for reasonable cause from two months to four months.  It appears the complainant would have missed this four month extended period by around a week.  This cannot be precise as the exact last date at school, the last date on which a discriminatory act could have occurred, is not included.

The adjudicator goes on to consider the further provision for dispensing with the notification requirement altogether contained in section 22(3)(a)(ii) which states:

exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction (emphasis added)

The Adjudicator goes on to interpret this as requiring the complainant to establish whether exceptional circumstances preventing the complainant from making the notification, or that exceptional circumstances led to the delay. He found that this had not been achieved.

However, an alternative interpretation is that the word “exceptionally” refers to the number of times this might arise i.e. it would occur only rarely, on the basis that most notifications are made within either two or four months, and that it is for the WRC, (previously the Director of the Equality Tribunal), to exceptionally consider whether it was fair and reasonable in the particular circumstances of the case.  Arguably, this provision relates to considerations appropriate to the WRC rather than requirements that must be met by the complainant of the very high standard of ‘exceptional circumstances prevented’.

For those interested in how the test of exceptional circumstances is applied where it is appropriate an in-depth consideration is included in the Labour Court’s determination EDA169 although the statutory framework differs somewhat to the previous employment equality provision of ‘exceptional circumstances prevented’.