Equality Officer’s Decision No: DEC-E/2008/035
Parties
Gorry
(Represented by Ray Ryan BL – Instructed by
HamiltonTurner - Solicitors )
And
Aviance Ireland
(Represented by IBEC)
1. DISPUTE
This dispute involves a claim by Mr Patrick Gorry that he was dismissed by Aviance Ireland in circumstances amounting to victimisation in terms of section 74 of the Employment Equality Acts, 1998-2004 when it terminated his employment in July, 2005.
2. BACKGROUND
2.1 The complainant worked as a ramp controller with the respondent for almost 16 years. In February, 2005 he was advised that he was to be made redundant. Following negotiations between the complainant’s trade union and the respondent, the complainant was subsequently offered and accepted re-deployment within the respondent organisation on new terms of employment. Following events in the course of a meeting between him and certain members of the respondent’s Management, including his immediate Supervisor, on 25 May, 2005, the complainant reconsidered the redundancy offer and accepted it on 21 June, 2005. The complainant’s employment with Aviance terminated by way of the redundancy arrangement on 12 July, 2005. The complainant contends that he had no option but to accept the terms of the redundancy package due to the alleged treatment of him by Management following the meeting on 25 May, 2005 and submits that this constitutes victimisatory dismissal contrary to the Acts.
2.2 The complainant’s legal representative referred a complaint on its client’s behalf under the Employment Equality Acts, 1998-2004 to the Equality Tribunal on 4 January, 2006 alleging discriminatory treatment (in relation to conditions of employment) and harassment of the complainant. As no discriminatory ground was cited on the form the Tribunal sought clarification on this issue by way of letter dated 8 February, 2006. The complainant’s legal representative replied to this letter on 10 March, 2006 enclosing an updated referral form – which was received in the Tribunal on 14 March, 2006. This letter indicated a different source of action by the complainant – that he was victimised by the respondent contrary to the Act by being forced to accept the redundancy package – victimisatory dismissal - and the referral form confirmed this.
2.3 In accordance with her powers under the Acts the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Acts. By this time submissions had been received from both parties, but the Equality Officer required further clarification of the nature of the complaint, given that the two referral forms indicated different and distinct causes of action and the submissions did not adequately address this issue. The complainant’s legal representative clarified by way of letter received in the Tribunal on 13 March, 2008 that its client’s complaint referred to victimisatory dismissal only – the details of which were contained in the letter and referral form received by the Tribunal on 14 March, 2006. It appeared to the Equality Officer that there was an issue in respect of time limits for referring claims under section 77 of the Acts and he wrote to the parties advising them of his concerns, requesting the complainant’s representative to set out its arguments in this regard, including arguments for a request to extend the six month time limit for referral of complainants prescribed at section 77 of the Acts. Having examined the submissions made on this point by the parties the Equality Officer decided it was more convenient for all concerned to proceed with the Hearing on the complaint – taking arguments on the time limit issue and the substantive complaint of victimisatory dismissal together – given that submissions on all aspects of the complaint had been filed. He informed the parties, by letter dated 28 April, 2008, that should he find the complaint was not validly before the Tribunal his Decision would address that issueonly, in accordance with section 79(3)(A) of the Acts and if he found the complaint was validly before the Tribunal his Decision would deal with the totality of the complaint. The Hearing on the complaint took place on 21 May, 2008
3. SUMMARY OF COMPLAINANT’S CASE
3.1 Counsel for the complainant submits that the complaint was referred within the six month time limit prescribed at section 77(5)(a) of the Acts. He states that the initial complaint form was received by the Tribunal on 4 January, 2006 – which is within six months of 12 July, 2006 – the last day of the complainant’s employment with the respondent. He submits that the correspondence received by the Tribunal on 14 March, 2006 and 13 March, 2008 seeks to clarify the nature of this original complaint – in response to queries raised by the Tribunal. He adds that all correspondence from the Tribunal indicated that it was in a position to proceed to investigate the complaint. It was submitted on his behalf of the complainant at the Hearing that it would be unjust and an error of law if his complaint was not to proceed. It was further submitted that as the complaint was referred within six months it was not necessary for him to resort to seeking an extension of the time limit for referral of the complaint in terms of section 77(5)(b) of the Acts.
4. SUMMARY OF RESPONDENT’S CASE
4.1 The respondent argues that the complaint is out of time in the first instance. It states that the details of complaint contained in the initial referral form and those contained in the subsequent form submitted on 14 March, 2006 refers to two completely distinct and separate matters under the Acts. It notes that on receipt of the initial referral form – which complained of discriminatory treatment in relation to conditions of employment and harassment – the Tribunal sought clarification (from the complainant’s legal representative) of the discriminatory ground on which the complaint was based. It states that the response received on 14 March, 2006 clearly indicates that the complainant was victimised and as such the impugned behaviour does not fall under one of the nine discriminatory grounds. It argues that this second referral form is in fact a new complaint, that it is referred outside of the six month time limit prescribed by the Acts – as the complainant’s employment with the respondent ceased on 12 July, 2005 and it is therefore out of time unless an extension of time is granted by the Tribunal in accordance with section 77(5)(b) of the Acts.
4.2 The respondent states that Tribunal is not estopped under section 77(5) from proceeding to investigate the complaint, but it must ensure that a complaint is properly before it in the first instance. In order to reach such a conclusion the Tribunal may need to formally commence an investigation on the issue but it cannot proceed to investigate and reach a conclusion on any substantive elements of a complaint of discrimination unless it is satisfied it is lawfully entitled to do so. It adds that the contents of correspondence from the Tribunal cannot be taken to indicate that all of the procedural matters are in order and they are merely expressions of the Tribunal’s readiness to proceed to Hearing. It submits that the time limits contained at section 77(5) of the Acts are mandatory and the only discretion available to the Tribunal is to extend the period for referral of a complaint to a maximum of twelve months after the most recent occurrence of the alleged unlawful treatment, provided it is satisfied that reasonable cause for the delay in referring the complaint existed. It contends that the complainant has failed to demonstrate the existence of reasonable cause because he had fully instructed his legal representative before the initial complaint form was referred to the Tribunal.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 Before reaching any conclusion on the complainant’s substantive allegation of unlawful treatment of him under the Employment Equality Acts, 1998-2004 I must be satisfied that the complaint is properly and validly before the Tribunal. Section 79(3)(A) of the Acts provides “If in a case which is referred to the Director … a question arises relating to the entitlement of any party to bring or contest proceedings….including whether the complainant has complied with the statutory requirements relating to such referrals….the Director may direct that the question be investigated as a preliminary issue….”. The powers of the Director in this regard have been delegated to me and I propose to proceed on that basis in the instant case. Consequently, the issue for decision by me is whether or not the complaint is validly before the Tribunal for investigation. In reaching my decision I have taken into account the oral and written evidence on this point submitted by the parties.
5.2 The complainant ceased his employment with the respondent on 12 July, 2005. His employment ceased as a result of redundancy. It follows therefore that this date constitutes the most recent date of any alleged discrimination for the purposes of calculating the statutory periods in accordance with section 77(5) of the Acts. The complainant’s first referral form was received in the Tribunal on 4 January, 2006 – within the six month timeframe required under section 77(5)(a) of the Acts. The form, which was completed by the complainant’s legal representative and signed by it on his behalf, indicated at part 4 that the nature of his complaint was discriminatory treatment in respect of his conditions of employment and harassment. At part 8 of the form - the section seeking details of the “date of dismissal” was scratched out and “date of redundancy” was entered instead. The date “12 July, 2005” was inserted alongside this amended section of the form. The part of the form seeking a brief outline of the complaint contained the text “please see attached”. A letter from the complainant’s legal representative was the only document attached to the form. This letter, inter alia, stated that the complainant “feels that he was harassed and intimidated” by the respondent. However, nowhere on the form (specifically at part 3 thereof which sets out the nine proscribed grounds), or in the letter attached to the form was there any indication of the discriminatory ground(s) upon which the complaint was based.
5.3 In accordance with the Tribunal’s standard procedures a letter issued to the complainant’s legal representative on 8 February, 2006 seeking confirmation of the discriminatory ground(s) on which the complaint was being made. The Tribunal received a response to this correspondence on 14 March, 2006. This response stated that the complainant was victimised to such an extent that he was forced to accept the redundancy package and confirmed that the alleged unlawful treatment of him was not on the basis of any of the discriminatory grounds. It attached an “updated” referral form which indicated at part 4 –description of claim - that the nature of the complaint was victimisatory dismissal. This form was also completed and signed by his legal representative on his behalf. This position was subsequently confirmed by the complainant’s legal representative in its letter of 13 March, 2008 to the Equality Officer when it states “please note that our client’s claim relates to victimisatory dismissal only”. Whilst the complaint forms are not prescribed by the statute, they provide the parties and the Tribunal with a ready made mechanism and user-friendly tool for referring complaints to the Tribunal. Section 6 of the Acts defines discrimination for the purposes of the Acts, whilst section 14A and 74 define harassment and victimisation respectively. The legislation therefore envisages these three types of unlawful behaviour as separate and discrete sources of action which can be pursued by a complainant. The referral forms are designed in such a way as to reflect these distinctions.
5.4 On the basis of my comments in the preceding paragraph I am satisfied that the complainant’s second referral form constitutes a new complaint to the Tribunal and does not correspond to a clarification of the initial complaint which was received by the Tribunal on 4 January, 2006. The written confirmation received on 18 March, 2008 that the complainant’s “claim relates to victimisatory dismissal only”- confirms the contents of the complainant’s second referral form, a referral form which was received by the Tribunal on 14 March, 2006 and this is therefore the only complaint which the Tribunal is entitled to investigate. This complaint was referred to the Tribunal outside of the six month time limit provided at section 77(5)(a) of the Acts and is not therefore validly before the Tribunal unless an extension of that time limit is granted under section 77(5)(b) of those Acts. Counsel for the complainant argued that it would be unjust and an error of law if the complainant’s claim was not allowed to proceed. The opposite of this argument is, in my view, equally valid. It would be unjust to the respondent and a similar error of law if the complaint was allowed to proceed where the mandatory time limits and procedures thereto were ignored or not complied with. The respondent is entitled to assume that any exposure it has to a claim under the employment equality legislation is reduced once six month period after the most recent alleged incident of unlawful treatment has elapsed and that any such claim will not be actionable after a period of twelve months has elapsed. Whilst “Tribunals exercising quasi-judicial functions are frequently allowed to act informally …. they may not act in such a way as to imperil a fair hearing or a fair result”[1]Consequently, I do not consider Counsel’s argument to be of any relevance.
5.5 I must now examine whether or notthere is reasonable cause for extending the statutory period for referral of a complaint under section 77(5)(b) of the Acts. Whilst the complainant’s original submission was that the complaint was referred in time and did not specifically address this issue to any great extent at the Hearing, despite been given several opportunities to do so, a number of facts emerged in evidence which are of relevance to this matter. The complainant submitted a statement of his claim to this Tribunal which is dated 1 July, 2005 and which he stated in evidence was prepared, as far as he could recall, by him around that time. He further confirmed that this statement was in the possession of his legal advisor prior to it referring his first complaint to this Tribunal on 4 January, 2006. In this statement the complainant expresses the view that he was victimised yet the initial referral form does not reflect this matter. In Cementation Skanska v A Worker[2], a Recommendation of the Labour Court under the Organisation of Working Time Act, 1997, the Court gives some very useful guidance on what constitutes “reasonable cause” for an extension of the time limits in relation to referral of a complaint. In this regard section 77(5)(b) of the Employment Equality Acts, 1998-2004 and section 27(5) of the Organisation of Working Time Act, 1997 are broadly similar. The Court comments that as the legislation does not give any guidance on what constitutes reasonable cause it is a matter for the forum hearing the complaint to decide that matter in the particular circumstances of each individual case. It adds that it is for the complainant “to show that there are reasons which both explain the delay and afford an excuse for it… 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 complainant at the material time. The complainant’s failure to present his 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 complainant should satisfy the Court, as a matter of probability, that had thosecircumstances not been present he would have initiated his claim in time.”. The complainant in the instant case was represented at the material time and his representative did not refer the full extent of the complaint. It adduced no evidence at the Hearing to justify an extension of time for referral of the complaint. Consequently, it has not satisfied the test of reasonable cause and an extension of time for referral of the complaint is not warranted in the circumstances.
6. DECISION OF THE EQUALITY OFFICER.
I find that the complainant did not refer his complaint to the Tribunal within the six month time limit prescribed at section 77(5)(a) of the Employment Equality Acts, 1998-2004. I further find that the complainant has failed to demonstrate that there was reasonable cause for not complying with this six month time limit and an extension of this period under section 77(5)(b) of the Acts is not warranted in the circumstances. Consequently, his complaint is not validly before this Tribunal for investigation.
____________________________
Vivian Jackson
Equality Officer
2 July, 2008