Ms Margaret Marnane
(represented by SIPTU)
v.
SouthTipperary CountyCouncil
(represented by LGMSB)
Claim
The case concerns a claim by Ms Margaret Marnane that South Tipperary County Council discriminated against her on the ground of gender contrary to Section(s) 6(2)(a) of the Employment Equality Acts 1998 to 2008, in access to employment pursuant to S. 8(1)(a) of the Acts.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 17 November 2006. On 17 July 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the case on 4 June 2009. A submission was received from the complainant on 27 August 2007. A submission was received from the respondent on 8 October 2007. Additional evidence was requested from both parties on 23 February 2009 and received on 23 March, 26 May, 2 July and 14 July 2009.
Summary of the Complainant’s Written Submission
In November 2005, the complainant applied again for a position as general operative with the respondent. The respondent received 325 applications in total, and shortlisting interviews were held in January and February 2006. The complainant was unsuccessful at her interview and was not called back for a final interview.
Summary of the Respondent’s Written Submission
The respondent submits that the complainant’s case is out of time. It states that the relevant date should be the one on which her interview took place in January 2006.
Conclusions of the Equality Officer
The issues for decision in this case are whether the complainant’s complaint of discrimination in access to employment on the ground of gender is within time pursuant to S. 77(5) of the Acts, and if so, whether she was discriminated against by the respondent.
The complainant received a letter from the respondent, dated 28th February, 2006, in which she was advised that she had not been successful in being shortlisted for the final stage of interviews for the position of General Operative with the respondent. This was identified at the hearing of the complaint as the date on which she learned of the event which gave rise to her complaint of discrimination. The complainant filed her complaint with the Tribunal on 17 November 2006, some nine months later. The time limit specified in S. 77(5)(a) of the Acts, where no application to the Director has been made in which reasonable cause for the delay has been shown pursuant to the provisions of S. 77(5)(b), is six months from the most recent occurrence of the discrimination.
I am satisfied that no review of the decision not to shortlist the complainant for the position of general operative took place at a later date. The representative of the complainant stated at the hearing of the complaint that a meeting he had with representatives of the respondent on 19 May 2009 was for the purpose of seeking information on the competition. He later sought to aver that a review of the respondent’s decision was sought. However, the respondent submitted that the representative of the complainant merely sought clarification of the interview process. This interpretation of the purpose of the meeting is supported by the entire correspondence that took place between the parties on the matter, as well the initial evidence of the representative of the complainant. I therefore find that the subsequent engagement between the parties was for the purposes of seeking information rather than an attempt to resolve the issue or have the respondent’s decision reviewed. In the light of the above, the 28th February 2006 must be taken as the date on which the complainant’s alleged discrimination occurred.
At no time between the referral of the complaint on 17 November 2006, and the hearing on 4 June 2009 did the complainant or her representative seek to make representations to the Director for an extension of time pursuant to S. 77(5)(b) of the Acts. Therefore I find I am bound in this matter by the decision of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that S. 19(5) of the Employment Equality Act of 1977, being the equivalent provision to S. 77(5) of the Acts, obliged the courts to interpret the time limit strictly where reasonable cause for extension had not been shown. I further note the finding of the High Court in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], which upheld, inter alia, a finding by the Labour Court that the onus is on the party wishing to avail of an extension of time pursuant to the provisions of S. 19(5) or S. 77(5), respectively, to make an application to this end to the court or judicial body seized of the matter.
Decision
Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that the complainant’s case is out of time pursuant to S. 77(5)(a) of the Acts, and that I have no jurisdiction to investigate her complaint.
_____________________
Stephen Bonnlander
Equality Officer
20 July 2009