Delay in Bringing a Case – Extension of Time

By September 30, 2020Employment Law

Delay in Bringing a Case – Extension of Time

This issue arose in case ADJ-00025687.

The Adjudication Officer set out that the established test for deciding if an extension should be granted for reasonable cause is set out in the Labour Court case of Cementation Skanska -v- Carroll DWT0425 where the Court considered ‘reasonable cause’ in the following terms.

‘’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 explains a 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 Claimants 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 also 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.

Subsequently the Labour Court in Salesforce.com -v- Leech EDA1615 held:

‘’It is clear from the authority’s 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 Complainant would have presented the Complaint in time where it not for the intervention of the factors relied upon as constituting reasonable cause’’.

The Adjudication Officer also pointed out that Mr Justice Costello in O’Donnell -v- Dun Laoghaire Corporation 1991 ILRM30 is one where it was held that a Court should not extend a statutory time limit merely because the applicant subjectively believes that he or she was justified in delaying the institution of proceedings.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

Richard Grogan

Author Richard Grogan

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