Antoinette Vahey, Partner RDJ LLP considers this question:

“We are in receipt of a letter from the WRC today attaching a complaint of discriminatory dismissal from an employee whose employment terminated more than 12 months ago, on the 8th of October 2021. This date is identified as the “most recent date of discrimination”. The complaint form is stamped as being received by the WRC on 6th October 2022 at 14:10. Surely this complaint is out of time and cannot be entertained.”  
How do I handle it?”  

Time considerations

The relevant date, when considering statutory timeframes, is the date of receipt of the complaint form by the WRC, together with the date of discrimination/termination date. Notice may be a relevant consideration, in assessing the termination date, and may in fact be the date on which notice expired as opposed to the last day of employment. In this case, the complaint would appear to be lodged over six months from the date of discrimination but within 12 months of that date.   

Employment Equality Act 1998, as amended (the ‘Act’)

Section 77(5) of the Act, (as amended by Section 41 (6) of the Workplace Relations Act, 2015) provides:

(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 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”.

Preliminary applications

It is the practice of the WRC to facilitate preliminary applications to the Adjudication Officer assigned to hearing the case, prior to proceeding to the substantive case.  The preliminary application in this case is that the Adjudication Officer does not have jurisdiction to hear the claim unless he/she forms the view that there is reasonable cause for the late submission of the claim. Where the Adjudication Officer forms that view, then they can extend the time for receipt of the claim, up to 12 months from the date. It is for the complainant to demonstrate that there is “reasonable cause” for late submission.

What is reasonable cause?

The established test for deciding if an extension of time should be granted, is set out in the Labour Court case of Cementation Skanska v Carroll, - DWT0338. In that case, the test for reasonable cause for extending the time limit was set out 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”

For an explanation of “reasonable cause” to succeed therefore, the complainant must

(i)       Explain the delay;

(ii)      Provide a reasonable excuse (objective standard) for the delay;

(iii)    Demonstrate that there was a causal link between the circumstances and the delay;

(iv)    Demonstrate that if the circumstances were not present, the claim would have been submitted on time.

What is “reasonable cause” will be assessed on the facts and circumstances of each case, however preliminary applications, which have been determined before the WRC are instructive. Some of the reasons provided by complainants in asserting that reasonable cause arises are as follows:

1. Unaware of legal entitlements/statutory time limits

• In Minister for Finance v CPSU and ors  [2007] 18 E.L.R. 36, the High Court held that “ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing a statutory time limit”. The Court therefore held that the complainanthad not been able to show reasonable cause to extend the time limit.
• However, in A Cleaner v A Contract Cleaning Company - ADJ-00009893, the Complainant argued that she is a non-national and is not familiar with the legal processes in Ireland. The adjudication officer found that reasonable cause had been proven: “Normally, ignorance of the person’s legal rights, as opposed to the facts giving rise to the complaint cannot provide a justifiable excuse for the failure to bring the complaint within time. But there are special circumstances in this case . . . The Complainant is a non-national. She could not reasonably be expected to understand the nature or detail of her statutory entitlements or the process of vindication of these”. 
• Also, inRezmerita Limited v Wioletta Morkis Labour Court (DWT1017), the complainants successfully argued that they were unaware of their entitlements under the Act because an Employment Regulation Order for the Retail Grocery and Retail Trades had not been displayed at their place of work. If the Order had been brought to their attention they would have been aware of their rights and would have acted sooner. The Labour Court found that the Respondent was under a positive duty, under the Industrial Relations Act 1946, to inform its employees of the content of the ERO governing their employment, particularly “in the case non-Irish workers, such as the Claimants, who could not reasonably be expected to understand the nature or detail of their statutory entitlements or the process through which they can be vindicated.”

2. Illness/Medical condition 

The existence of an illness or medical condition has frequently been proffered by complainants, as being the reason why they were prevented in submitting their complaints within the six-month timeframe.

• In Murphy v Citizens Information Call Centre Ltd UD 59/ 2005 the EAT ruled that, medical evidence, in the form of a medical certificate would be required, at the very least. Although this case related to the higher burden of “exceptional circumstances”, the EAT determined that the medical evidence provided, being the appellant’s GP’s notes, was insufficient, and the claim failed.
• In Dublin City Council - And - Mr Laurence A. Skelly - DWT212, the complainant that he suffered from poor mental health and PTSD, which made it difficult for him to complete the form as it acted as a trigger. However, the Labour Court rejected this argument and held that the complainant had not provided any evidence that submitting his claim within time would have been “any more detrimental to his condition than the copious correspondence he engaged in with the Respondent”.
• In a Public Servant v a Public Body - ADJ-00016861 - The complainant sought an extension due to severe anxiety for which she was hospitalised on two occasions for 9 weeks and 7 weeks. The adjudication officer found that the complainant might reasonably have failed to submit her claim in time, because of her illness and therefore granted an extension.

3. Involved in an internal procedure

Dublin City Council - And - Mr Laurence A. Skelly - DWT212 is also authority for the proposition that where an employee is involved in an internal process with their employer, such as an appeal or investigation, this does not amount to reasonable cause.

4. Personal and family responsibilities

In A Senior Staff Nurse V A Health Service Provider - ADJ-00011371 – the complainant submitted that she bore significant family responsibilities during the timeframe, which affected her ability to make her complaint on time. She also submitted that she was undertaking study in the period and that she suffered from dyslexia. She submitted that several serious personal, financial and professional reasons were responsible for the delay in making her complaint. An extension was not granted.

5. Could not afford legal representation

In An Officer V A Third Level College ADJ-00009214 – The complainant argued he could not afford to consult a solicitor because he was dismissed. In his evidence, the complainant said that he went on holidays after his dismissal and that he started work four weeks later. It would appear therefore, that the complainant’s financial circumstances were not radically altered as a result of his dismissal, and in fact, he may have been better off in his new job. An extension on time was not granted.

Conclusion

Whilst on the face of it a complaint may appear to be out of time, this is not a foregone conclusion and a preliminary application before an Adjudication Officer will be required. It is then up to the Adjudication Officer to determine whether reasonable cause exists which would allow them to extend the time for making a complaint up to a maximum of 12 months. It should also be noted that, more often than not, Adjudication Officers reserve their position on preliminary time applications, and go into evidence on the substantive complaint being made, so preparation for such cases will be important.