FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : W. CUMMINS PLASTERERS LIMITED (REPRESENTED BY COUGHLAN, WHITE O'TOOLE SOLICITORS) - AND - JAROSLAW NOWAKOWSKI (REPRESENTED BY BRENDAN ARCHBOLD) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal under Section 83 of the Employment Equality Act, 1998.
BACKGROUND:
2. The Worker appealed the Director of the Equality Tribunal's Decision EE/2006/230 dated 5th April, 2007, to the Labour Court on the 18th June, 2007, in accordance with Section 83 of the Employment Equality Act, 1998. A Labour Court hearing took place on the 11th March, 2008. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Jaroslaw Nowakowski against the Decision of the Equality Tribunal to decline jurisdiction in a complaint which he had made against W Cummins Plasterers Ltd pursuant to Section 77 of the Employment Equality Acts 1998 and 2004 (the Act). The Equality Tribunal had decided that the complaint was presented outside the 12-month statutory time limit within which it could be entertained. Accordingly, the Equality Tribunal held that it had no jurisdiction to extend the time for the bringing of the complaint.
For ease of reference the parties are referred to using the designation prescribed by Section 77(4) of the Act. Accordingly, Mr Nowakowski is referred to as the Complainant and W Cummins Plasterers Ltd is referred to as the Respondent.
The Facts.
It is agreed by the parties that the Complainant was dismissed by the Respondent without notice on 1st July 2005. The Complainant lodged a complaint with the Equality Tribunal on 6th July 2006 alleging that the dismissal constituted an act of discrimination.
The Law.
Section 77(5) of the Act provides as follows:-
- (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 victimization 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 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 as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
Section 77(6A) provides:-
- For the purposes of this section -
- (a) discrimination or victimisation occurs-
- (i) if the act constituting it extends over a period, at the end of the period,
(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) if it arises by virtue of a provision which operates over a period, throughout the period,
- (i) if the act constituting it extends over a period, at the end of the period,
- (a) discrimination or victimisation occurs-
It was submitted on behalf of the Complainant that the act alleged to constitute discrimination was his dismissal. It was contended in argument that since the Complainant was not given notice the date of dismissal should be deemed to be the date on which notice, if given, would have expired. In the alternative it was argued that the discrimination alleged should be regarded as a continuing act extending over the period during which notice, if given, would have run.
The Respondent submitted that the act alleged to constitute the discrimination complained of was the dismissal of the Complainant. This occurred on 1st July 2005. The Respondent's case is that the time limit started to run from that date.
Conclusion of the Court.
Section 1(1)(b) of the Unfair Dismissals Act 1977-2001, provides, in effect, that where there is a dismissal without prior notice the date of the dismissal shall be deemed to be the date on which notice, if given, would have expired. That provision is for the purposes of the statute in which it is contained. There is no corresponding provision in the Act under which this claim is taken.
Section 77(5) of the Act is perfectly clear. The time limit runs from the date of the act which is alleged to constitute discrimination. The Complainant was dismissed on 1st July 2005. It was on that date that the employment relationship came to an end and it was then that the Complainant's cause of action, if any, accrued. It follows that the time limit for bringing his claim commenced from that date. Furthermore, a dismissal is a once-off act and cannot be construed as extending over a period within the meaning of Section 77(6A) of the Act.
The complaint was lodged on 6th July 2005. This was more than 12 months from the impugned dismissal. Accordingly, the EqualityTribunal had no jurisdiction to entertain the complaint.
Determination
The Decision of the Equality Tribunal is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
25th March, 2008______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.