FULL RECOMMENDATION
SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : NORTH TIPPERARY COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD) - AND - O'CONNOR (REPRESENTED BY FRANK WARD SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Act, 1998 - Dec-E2004-038
BACKGROUND:
2. The Labour Court investigated the above matter on the 11th February, 2005. The Court's determination is as follows:
DETERMINATION:
- Background:
Following an advertisement of Posts for Senior Executive Engineer in North Tipperary County Council under the “Better Local Government Agreement”, an internal competition for the posts took place. The complainant was an applicant. He was interviewed for the position on 21st June 2001, and was unsuccessful. On that date, the successful candidates were appointed on a temporary basis and the unsuccessful candidates including the complainant were informed by telephone.
The Council confirmed the results of the competition in writing on 9th July 2001. These letters were received on 10th and 11th July 2001. The complainant claims not to have got such a letter.
On 13th September 2001, the complainant wrote a letter under the Freedom of Information Act (FOI) to the Council, asking a number of questions about his personnel file and the interview process with a view to appealing the decision of the interview board.
He received replies to these queries in a letter dated 16th October 2001, from the Council. He sought a review of the information on 21st November 2001. He received a further reply on 10th December 2001 which, inter alia pointed out that "any candidate who receives less than 50% in any given area (of the interview) is deemed not to qualify" and that he had failed to achieve these marks in some areas.
On 14th December 2001, the Council Manager instructed that the 7 temporary appointments be formalised. This was done on the 21st December 2001, with effect from 21st June 2001.
On the 18th June 2002 the complainant lodged a complaint of discrimination on the grounds of age in the interview process with the Equality Tribunal.
The appointments were made permanent on 13th November 2002.
The case was delegated to an Equality Officer, who, on being advised by the respondent that , in the respondents view the complainant complaint was submitted more than 6 months after the last act of discrimination and was therefore outside the six month time limit prescribed in Section 77(5) of the 1998 Act, decided to dispose, as a preliminary issue, the question of the correct date of alleged discrimination. A hearing took place on 16th December 2003 and both parties were satisfied that the Equality Officer had all relevant information in his possession by 19th March 2004.
In his decision, dated 21st June 2004, the Equality Officer found that
(i) the actions of the respondent on 21st December, 2001 did not constitute the most recent occurrence of any alleged act of discrimination on its part;
(ii) the most recent occurrence of any alleged act of discrimination on the respondents part would be the date on which the complainant received formal written confirmation that he was unsuccessful in the interview process (10 or 11th July, 2001);
(iii) in light of (ii) above the six month time limit prescribed at Section 77(5) of the Employment Equality Act, 1998 would expire on 10th January, 2002 at latest and as the complainant did not refer his complaint to the Office of the Director of Equality Investigations until 18th June, 2002, his complaint was out of time.
On 24th July 2004, the complainant appealed this Decision to the Labour Court. A hearing took place in Nenagh on 11th February 2005.
Complainant’s Case:- 1. The Decision of the Equality Officer that the receipt by the complainant of formal confirmation that he was unsuccessful in the interview process (10/11th July 2001) was the most recent alleged act of discrimination is wrong and unsafe. The temporary appointments were not confirmed until 21st December 2001, within in the time limit for an appeal on 18th June 2002, and there was, in fact, a further instance of discrimination when the appointments were made permanent on 13th November 2002.
2. The Equality Officer accepted into evidence an unsigned, unaddressed computer printout (allegedly received by the complainant on 10th/11th July 2001), though the complainant has no recollection of this, as proof of notification that the complainant was unsuccessful. Such a document is not specific enough to be taken as evidential fact.
3. The Equality Officer stated in his recommendation that “I am satisfied that the respondent was not in a position to formally appoint personnel to the posts until after 6th December 2001” (when the process was ratified by the Unions). Yet, in a subsequent paragraph he contradicts himself by saying “shortly afterwards (after the interviews) these personnel were appointed to the grade of Senior Executive Engineer on a temporary basis”. These statements are clearly contradictory.
4. Given the previous points, the Equality Officer erred in law and in fact when he declared in Section 5.6 that “the actions of the respondent on 21st December 2001 did not involve any consideration or reconsideration of the selection process or its outcome and was merely a formalisation or regularisation of the decision taken on 21st June 2001”.
5. In paragraph 5.4 of his decision, the Equality Officer refers to an instruction from the County Manager “to proceed “ on the appointments”. The complainant submits that the Manager supposedly wrote the word “proceed” on the panel result form and that this was incorrectly interpreted by the Equality Officer as “proceed with appointments”. No such interpretation should have been taken.
6. In deciding to first deal with the question of the preliminary “date” issue alone, the Equality Officer has based his decision on limited evidence without resorting to the full facts of the case and has therefore failed to apply the principles of natural justice and unduly delayed the process.
7. Some of the “background” to the Equality Officer’s decision is based on one-sided statements by the respondent on which the views of the complainant were not sought.
Respondent’s Case:- 1. The respondent argues that the alleged act of discrimination complained of could only have taken place on one of three occasions
- the date the interview was held
- when particular individuals were placed on a panel for the post in question
- when the individuals were informed of the outcome of the interview.
All of the above occurred on 21st June 2001. It is not logical to suggest that any alleged act of discrimination took place sometime after these occasions on the basis that there was no further consideration of the matter and that later permanent appointments were made solely on the basis of the interview board’s decision of 21st June 2001.
2. The claimant’s allegation of a further act of discrimination having taken place when the permanent appointments were made on 13th November 2002, is invalid. It was not brought to the Equality Officer’s attention at the original hearing, nor was it submitted as a complaint in the first instance to the Director of Equality Investigations, under Section 77(1) of the Act.
3. The allegation that the Equality Officer "accepted into evidence an unsigned, unaddressed computer printout dated the 9th July" as proof of notification is an erroneous one. The Equality Officer was satisfied that the letter issued. The Council has produced evidence that the claimant knew he was unsuccessful (e-mail dated 25th June 2001, requesting notes, marks etc regarding his interview). A successful candidate would not reasonably look for these, and besides, the claimant had been informed by telephone on 21st June 2001 that he was unsuccessful. In regard to the claimant’s objection to the “computer printout”, it was reasonable for the Equality Officer to accept this as proof of notification that the claimant was unsuccessful. He has not denied receiving a letter on 10th/11th July 2001 – he simply states that he cannot remember receiving one.
4. The assertion that the statements “shortly afterwards those personnel were appointed to the grade of Senior Executive Engineer (SEE) on a temporary basis” and “I am satisfied that the respondent was not in a position to formally appoint personnel to the posts until after the 6th December 2001” are contradictory is erroneous. There is no contradiction – the successful candidates were appointed to the acting posts of SEE. The delay in formalising the appointments on a temporary was because it was necessary to await final acceptance by SIPTU/LAPO in respect of the BLG negotiations. The order was signed on 21st December 2001.
5. It is not the case that the Equality Officer should not have dealt with the preliminary issue first and thus “based his decisions on limited and uncontested evidence”. The Equality Officer complied fully with the methodology as previously set out by him and according to the normal way of dealing with a time limit as a preliminary issue. All points raised by the complainant were considered, and natural justice was served, with no undue delay.
6. Contrary to the complainant’s claim, it is the demonstrable truth that no further consideration of the selection process took place after 21st June 2001.
7. The Equality Officer was correct in law when he citedCast v Croyden College– UK Court of Appeal…… “a decision may be an act of discrimination whether or not it is made on the same facts as before, providing it results from a further consideration of the matter and is not merely a reference back to a previous decision.”
He applied this rationale to the instant case and found that the decision of the interview panel was taken on 21st June 2001 and seven candidates were considered suitable for appointment. These personnel were appointed acting to the grade of Senior Executive Engineer on a temporary basis and were carrying out the duties appropriate to that grade. The appointments of these seven personnel were ratified as temporary on 21st December 2001, with retrospective effect to 21st June 2001. The posts were subsequently as ratified permanent on 13th November 2002 as provided for in the Better Local Government agreement. Neither the complainant nor these seven employees competed in another interview for the posts. The Council submits that its action on 21st December 2001 and 13th November 2002 did not involve any new consideration or re-consideration of the selection process or its outcome and it was merely a formalisation or regularisation of the decision taken on 21st June 2001.
8. The complainant referred the matter to the Equality Authority on 18th June 2002 (appendix 13), almost twelve months after the interview process.- It is evident that the Equality Officer was correct in identifying that the most recent act alleged to constitute discrimination in accordance with Section 75(5) of the Employment Equality Act could have taken place no later than 10th or 11th July 2001. His conclusion that the complaint was lodged outside the permitted time limit and that he did not have jurisdiction to hear the matter is correct.
The respondent reiterated that the complainant did not introduce any exceptional circumstances in this case which prevented him lodging the claim within the time limit.
- It is evident that the Equality Officer was correct in identifying that the most recent act alleged to constitute discrimination in accordance with Section 75(5) of the Employment Equality Act could have taken place no later than 10th or 11th July 2001. His conclusion that the complaint was lodged outside the permitted time limit and that he did not have jurisdiction to hear the matter is correct.
Chronology
Date of Interview. 21st June 2001
Date of Panel’s Decision. 21st June 2001
Date complainant told (by telephone) that
he was unsuccessful. 21st June 2001
Date successful candidates appointed temporarily. 21st June 2001
E-mail from complainant to Council requesting marks
notes, etc. 25th June 2001
Reply to his e-mail with marks allotted to complainant. 25th June 2001
Letters issued to unsuccessful candidates. 9th July 2001
Letters received by unsuccessful candidates. 10th/11th July 2001
F.O.I. request to Council from complainant requesting
information on personal file/records and notes of
interview board/selection methods/criteria/marking
scheme/order of merit position/marks awarded to
himself and others/statements on decision, procedures,
safeguards, board make up/role of Chairman, training
of board members. This request also signalled
complainant’s intention to appeal decision to
“fail to qualify him” 13th September 2001
Reply to above from Council, advising complainant,
inter alia, of his failure to obtain minimum qualifying
marks in 2 of the 7 areas of selection. 16th October 2001
Request by complainant to County Manager for
review of his FOI request. 21st November 2001
Reply to this from County Manager explaining,
inter alia, that as complainant was deemed not
to have qualified (minimum marks) no placing
was awarded to him. 10th December 2001
SIPTU/LAPO conveyed agreement to BLG proposals 6th December 2001
County Manager instructed that 7 temporary
appointments be formalised. 14th December 2001
Director of Services order signed, confirming
Temporary appointments backdated to 21st June 2001. 21st December 2001
Complainant’s appeal to Director of Equality Investigations. 18th June 2002
7 Posts made permanent. 13th November 2002
The above Chronology is included because of the amount of emphasis placed by both parties on the importance of a complex series of dates in considering the time limit question.
The matter before the Court is to establish when the most recent act of alleged discrimination took place, after which the complainant had 6 months to appeal. At no stage was any application made for an extension of the time limit. The complainant lodged his complaint on 18th June 2002, so for the complainant’s claim to succeed, the most recent act of alleged discrimination would have had to have occurred on or after the 18th December 2001.
The Law:
The complainant referred the Court to the Judgment of the Supreme Court inDekra Eireann TEO v Minister for Environment & Local Government2003 2 ILRM 210. He claimed that as the High Court had discretion to extend the prescribed statutory limitation period for judicial review, this Court could do the same. This Court however has no discretion to extend the time limit for filing a complaint except as prescribed by Statute. No such application was made to the Equality Tribunal and no such application can therefore be before this Court.
The Complainant also referred the Court to the case ofMWHB v Fitzgerald, Unreported . Butler J, in upholding an appeal to the High Court against a determination of the Labour Court, stated:- “no allegation of discrimination on grounds of gender could have arisen before the appointment of a male to the disputed position. That appointment constituted the first occurrence of the act alleged to constitute the discrimination and that act took place (just) within the six month period.”
Findings:
It can be seen from the Chronology that the alleged act of discrimination took place when on the 21st June 2001 the panel made its decision, the unsuccessful candidates were informed by phone and 7 successful candidates were appointed on a temporary basis.
There is also the letter of the 9th July 2001 (the issuing of which is not in contention) formally advising unsuccessful candidates that they had not succeeded.
The only matter which delayed the formalising of the decision of 21st June 2001 until 21st December 2001, was the confirmation of acceptance by the Trade Unions of the BLG deal.
In the view of the Court, the alleged discrimination took place on the 21st June 2001. Any action which subsequently followed merely referred back to that decision. For the Complainants complaint to have been made in time, it would have had to be filed before the 21st December 2001.
The Decision of the Equality Officer is therefore upheld and the appeal is dismissed. - 1. The Decision of the Equality Officer that the receipt by the complainant of formal confirmation that he was unsuccessful in the interview process (10/11th July 2001) was the most recent alleged act of discrimination is wrong and unsafe. The temporary appointments were not confirmed until 21st December 2001, within in the time limit for an appeal on 18th June 2002, and there was, in fact, a further instance of discrimination when the appointments were made permanent on 13th November 2002.
Signed on behalf of the Labour Court
Raymond McGee
2nd June 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.