FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : IRISH MEDICAL COUNCIL (REPRESENTED BY MCDOWELL PURCELL SOLICITORS) - AND - CATHERINE FLAVIN O'LOUGHLIN DIVISION : Chairman: Mr Duffy Employer Member: Mr Carberry Worker Member: Mr. Somers |
1. Appeal under Section 83 of the Employment Equality Act, 1998 Dec-E2003-046
BACKGROUND:
2. The Labour investigated the above matter on the 27th April, 2004. The Court's determination is as follows:
DETERMINATION:
Introduction
Dr. Catherine Flavin O’Loughlin (the complainant) claims to have been discriminated against by the Irish Medical Council (the respondent) on grounds of her nationality and /or her gender contrary to section 13 of the Employment Equality Act, 1998 (the Act). The complainant is of Greek nationality, which she acquired by marriage. The claim was considered by an Equality Officer of the Equality Tribunal who found that the claim had not been made out. It is against that decision that the complainant appealed to this Court. The complainant did not attend and was not represented at the hearing before the Equality Officer.
Nature of the Complaint.
At the commencement of the hearing the Court asked the complainant to clarify the acts or events on which she relies as constituting unlawful discrimination under the Act. The complainant confirmed that her complaint relates to (a) an alleged inordinate delay on the part of the respondent in processing her application for full registration (b) a further inordinate delay in processing her application for specialist registration and / or its refusal to so register her, and (c) the manner in which a complaint against the complainant was handled by the respondent’s Fitness to Practice Committee.
The Facts.
The Court received comprehensive submissions from both parties to the dispute and heard oral evidence from two witnesses. Whilst there is considerable dispute on practically all of the material facts, the Court considers it sufficient, for the purpose of this determination, to find as follows:
•The complainant is a Medical Doctor who obtained her primary degree from the University of Athens in 1982. She later qualified as an Orthopaedic Surgeon from the Prefecture of Athens in 1990.
•In 1995 the complainant applied to the respondent for full registration in the general registrar of medical practitioners under the provisions of the Medical Practitioners Act, 1978. This application was made on the prescribed form dated 15th July, 1995. As is normal practice the respondent sought to obtain verification of the complainant’s qualifications from the Greek Authorities. Certain difficulties and delays were experienced in this process.
•Finally, the complainant was registered and a certificate of full registration was issued to her on 17th May, 1996.
•In July, 1997 the complainant applied to the respondent for registration in the Register of Medical Specialists which had been established by the respondent in January of that year. The respondent communicated with the “Prefecture of Athens” seeking confirmation that the certification furnished by the complainant with her application was issued pursuant to Directive 93/16/ EC.
•There was further delay in processing this application and correspondence passed between the complainant and the respondent in relation thereto. By letter dated 9th September, 1999 the complainant wrote to the respondent in terms which the respondent understood to be a withdrawal of the said application. Thereafter the respondent took no further action in the matter.
•By letter dated 24th May, 1999 the Mid-Western Health Board wrote to the respondent enclosing an anonymous complaint which it had received alleging that the complainant was practicing medicine while not registered and that she was engaging in advertising her services. A copy of a newspaper notice alleged to constitute advertising was sent with the anonymous complaint. Whilst the complaint, in so far as it alleged that the complainant was not registered was clearly false, the respondent decided to invite the complainant to submit her comments on the newspaper notice for consideration by the Fitness to Practice Committee and did so by letter to the complainant dated 3rd November, 1999.
•The complainant replied by letter dated 25th November ,1999 asserting that the newspaper notice in question was an announcement of the commencement of her practice and not an advertisement.
•It appears that the Fitness to Practice Committee of the respondent met on 11th February, 2000 and the complaint against the complainant was considered at this meeting together with the comments thereon supplied by the complainant. The committee resolved that there was not a prima facie case for the holding of an enquiry into the said complaint. The complainant was so advised by letter dated 15th February, 2000.
•In the interim the complainant requested the respondent to provide her with a certificate of good standing for the purpose of seeking registration in another jurisdiction. Because this request was received after the complaint had been referred to the Fitness to Practice Committee and before the decision not to proceed further with the matter was taken, the respondent declined to provide this certificate.
Further issues of contention arose between the complainant and the respondent in relation to the matters aforesaid which are not material to the issues to be determined by this Court. The complainant contends that in respect of these matters she was treated less favourably than a person of Irish nationality and /or a man would have been treated.
Matters for Consideration and Conclusions of the Court.
The Labour Court is a creature of statute and can only exercise such jurisdiction as is conferred on it by stature. In so far as the instant case is concerned it is the Court's jurisdiction under the Employment Equality Act which has been invoked and the case must be decided solely on the basis of what that statute, and Directive 76/207/ EEC, provides.
The respondent has raised two preliminary issues concerning the jurisdiction of the Court in this case. Firstly, they say that the respondent herein is not an employer, an employment agency or a body of a type complemented by section 13 of the Act. Consequently, it is submitted, the respondent is not amenable to investigation by the Court under the Act. The Court is not disposed to accept this submission. Whilst the respondent does not control entry to the profession of medical practitioner, it does control the carrying on of that profession in that qualified Doctors are seriously restricted in their professional practice if they are not registered by the respondent.
Secondly the respondent contends that the within application is out of time and statute barred. The claim was lodged with the Equality Tribunal on 3rd March, 2002. This, the respondent contends, was outside the six-month time limit prescribed by section 77(5) of the Act in relation to the date of occurrence of any of the acts alleged to constitute discrimination.
In this respect the Court regards the date of the relevant occurrence or the most recent occurrence of the acts alleged to constitute discrimination to be as follows:
- Initial Application for Full Registration.
The complainant applied to the respondent on 15th July, 1995 and was registered on 17th May, 1996. Any cause of action which the complainant may have had in relation to the manner in which this application was dealt with by the respondent accrued on or before 17th May, 1996. Consequently, it was statute barred by the time it was presented on 3rd March, 2002.- Application for Entry in the Specialist Register.
The complainant applied for registration in the Specialist Register in July, 1997. The respondent treated her application as having been withdrawn on 10th September, 1999. Thereafter the respondent took no action in relation to this application. Any cause of action in relation to the manner in which this matter was dealt with by the respondent accrued on or before 10th September, 1999. It was also statute barred by 3rd March, 2002.
- Application for Entry in the Specialist Register.
- Investigation of an Anonymous Complaint Against the Complainant.
This complaint was received by the respondent on or about 25th May, 1999. The process of investigating it commenced on 3rd November, 1999 and was completed on 11th February, 2000. This was the latest date on which a cause of action could have accrued arising from this matter. It too is outside the time limit and is statute barred.
- Investigation of an Anonymous Complaint Against the Complainant.
Determination.
The time-limit prescribed by section 77(5) of the Act is in the nature of a statutory limitation period. Where a complaint is presented outside that period the statutory limitation can be pleaded by the respondent and, as a matter of law, provides a complete defence to the complaint.
The Court is satisfied that the acts alleged to constitute discrimination in this case occurred more than six months before the complaints herein were initiated. Section 77(6) of the Act provides that in exceptional circumstances the time limit may be enlarged to one of 12 months by the Director of the Equality Tribunal on application made to her in that behalf. No such application was made in this case and in any event any such application, even if granted could not have availed the complainant in bringing her complaints inside the time limit.
Accordingly the complainant cannot succeed and the complaint herein must be dismissed. This is the determination of the Court.
Signed on behalf of the Labour Court
Kevin Duffy
21st June, 2004______________________
JO'CChairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.