FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : HSE - AND - TOM WHELEHAN DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2008.
BACKGROUND:
2. This is an appeal by Mr Thomas Whelehan against the Decision of the Equality Tribunal DEC-E2009-035 by which it was held that his claims of discrimination and victimisation under the Employment Equality Acts 1998 –2008 were not properly before the Tribunal.
DETERMINATION:
Mr Whelehan (hereafter the Complainant) was employed by the Northern Area Health Board which was the predecessor of the Health Service Executive (HSE) (hereafter the Respondent). His employment ended ion 23rd February 2003. In or about 2001, while employed by the Respondent, the Complainant witnessed an assault on another person. He reported the assault to the Respondent. He claims that certain documents created by the Respondent in the course of its investigation of this report contained material which amounted to discrimination against him, and victimisation, on the disability ground, contrary to ss.6(2) and 14A of the Employment Equality Act 1998, as amended (hereafter the Act).
The Complainant presented a complaint to the Equality Tribunal on 28th March 2007. The Equality Officer to whom the case was assigned formed the preliminary view that a question arose as to whether the complaint was properly before the Tribunal. Pursuant to the power vested in him by s.79(3A) of the Act he decided to conduct a preliminary investigation on that question.
A hearing into that preliminary question was arranged for 27th March 2009. The Complainant failed to attend that hearing. The Equality Officer proceeded to deal with the preliminary question in the absence of the Complainant. He ruled that the complaints were not properly before the Tribunal and declined jurisdiction to investigate the complaints. While the Equality Officer did not say so in terms, it is clear that he reached that conclusion having found that the claims were presented outside the time limits prescribed by s. 77 of the Act.
The Complainant appealed to this Court.
Scope of the Appeal
Section 83(5) of the Act provides that where an appeal relates to a decision of the Equality Tribunal on a preliminary question under s.79(3) of the Act the Court shall only make a determination on that question. If the Court determines that question in favour of the Complainant it is required to remit the case to the Equality Tribunal for an investigation of the substantive issues.
Position of the Parties
The Complainant
The Complainant told the Court that, in or about 2001, he witnessed a colleague being assaulted in his workplace. He reported the incident to two members of management. Statements were made in writing by the managers concerned which contained references to the Complainant. The Complainant told the Court that he became aware of the existence of these documents in or about February 2007 when a former colleague obtained copies of them under the Freedom of Information Act.
The Complainant contends that these documents contain statements concerning him which are untrue. He regards them as discriminatory against him on grounds of his disability and he further regards them as humiliating and amounting to victimisation.
The Complainant told the Court that he lodged his claim with the Equality Tribunal promptly when he became aware of the existence of the documents. He submitted that the Act must be construed in a common-sense way and that it would be absurd to hold that he should have made a claim before he became aware of the facts upon which the claim was based. In the alternative, the Complainant submitted that the Respondent was guilty of misrepresentation in failing to disclose the existence of the documents in issue when they were created. On that basis the Complainant relied on s.77(6) of the Act in advancing his submission that the time limit should only run from the date on which he became aware of the existence of the documents.
The Respondent denies that the Complainant was discriminated against or victimised in the manner alleged or at all. Without prejudice to its submission in that regard, the Respondent submitted that the act alleged to constitute discrimination and victimisation was the creation of the documents and that thatoccurred in 2001. On that basis the Respondent submitted that the claim is out of time and cannot be entertained by the Court.
Conclusions of the Court
Section 77(5) of the Act, as amended, provides as follows: -
- “(5) (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 victimisation 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.
(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.”
- (6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.
The Complainant urged the Court to construe the subsection as meaning that the date of occurrence of the discrimination is the date on which the victim of the discrimination first became aware of it. He submitted that any other construction would amount to an absurdity.
A time limit of the type in issue is analogous to a limitation period for the bringing of actions in civil law. It is settled law that limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary. In that regard the Supreme Court, inHegarty v O'Loughran[1990] 1 IR, 148 rejected the view that a cause of action accrues when the plaintiff could reasonably discover its existence. The Court held that a cause of action accrues at the time when all the requisite elements of the action existed whether or not the plaintiff knew of their existence.
In considering this question the Court has also had regard to s.5 of the Interpretation Act 2005, which provides: -
- 5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—
(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—
(i)in the case of an Act to which paragraph (a) of the definition of “Act” insection 2(1) relates, the Oireachtas, or
(ii)in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,
- the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.
There is another aspect of this case which falls to be considered. The Act prohibits discrimination in relation to employment. The only form of actionable discrimination of which the Complainant could complain is in relation to the conditions of his employment. Logically, such discrimination could only arise when a Complainant is actually in employment. In this case the Complainant ceased to be employed by the Respondent on 23rd February 2003 and any discrimination upon which he could ground a claim for redress under the Act could only have occurred before that date. This would clearly place his claim outside the time limit.
The Court next considered the Complainant’s submissions regarding the applicability of s77(6) of the Act. It appears to the Court that a misrepresentation, for the purpose of the subsection, can only occur where an employer makes some false representation to an employee concerning a material fact. There is no evidence of the Respondent having made any representations to the Complainant in relation to the documents in issue. The Respondent was under no legal duty to disclose the existence of these documents to the Complainant and its failure to do so could not be construed as a misrepresentation.
Determination
For all of the reasons set out above the Court is satisfied that the within claim was presented to the Equality Tribunal outside the time limit prescribed by s. 77 of the Act. Accordingly the Court affirms the Decision of the Equality Tribunal and the Complainant’s appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
18th November, 2009______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.