The Equality Tribunal
Employment Equality Acts
Decision DEC-E2009-080
PARTIES
James McGrath
(Represented by Denis A. Linehan & Co., Solicitors)
- V -
An Garda Síochána,
The Department of Justice, Equality & Law Reform and Others
(Represented Joe Jeffers, B.L. instructed by the Chief State Solicitor's Office)
File references: EE/2005/062
Date of issue: 15 September 2009
Keywords - Employment Equality Acts – Discriminatory Dismissal and Treatment – Harassment - Victimisation - Victimisatory Dismissal – Disability – Time Limits -Jurisdiction -
1. DISPUTE
1.1 This dispute concerns a claim by Mr James McGrath that he was subjected by the respondents to discriminatory dismissal and treatment; harassment; victimisation and victimisatory dismissal on the ground of disability in terms of Section 6(2) of the Employment Equality Acts, and contrary to Section 8 of those Acts.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 25 February 2005 under the Employment Equality Acts. On 28 May, 2008, in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Conor Stokes - 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 which date my investigation commenced. Submissions were sought and received from the parties. As required by Section 79(1) and as part of my investigation, I proceeded to hearing on 08 September 2009. All written and oral evidence presented to the Tribunal has been taken into consideration when coming to this decision.
2. SUMMARY OF THE COMPLAINANT'S CASE
2.1 The complainant was employed as a Garda by the first-named respondent. On 25 June 2003 the Chief Medical Officer (CMO) issued a D33 Certificate deeming the complainant unfit to carry on his duties as a Garda. On foot of the D33 certificate, the complainant was retired on grounds of ill health on 25 July 2003.
2.2 On 16 December 2004 the complainant received a letter, on foot of a Freedom of Information request, from the first named respondent enclosing a copy of his D33 Certificate. This certificate contained an erroneous statement that the CMO had examined the complainant. It was only at this point that he became aware of this error.
2.3 The complainant submitted that he accepted that the 13 June and 18 July 2003 dates were the first dates of discrimination and that the provisions of the 1998 Act applied at that time and issues of alleged discrimination on the disability ground were outside the jurisdiction of the Tribunal. The complainant further submitted that the letter of 16 December 2004 gave him notice of the error and that if he had received this in 2003 he would have taken a complaint at that stage.
2.4 The complainant submitted that he was victimised by the respondents during the course of his work and subsequently.
3. SUMMARY OF THE RESPONDENT’S CASE
3.1 The respondent denied the allegation of discrimination and submitted that as all of the complainant's allegations related to or originated with either the CMO's D33 certification of 25 June 2003 or the complainant's retirement on 25 July 2003, the matter was beyond the jurisdiction of the Tribunal to deal with.
3.2 The respondent submitted that the receipt of the letter of 16 December 2004 was a restatement of the earlier decision.
3.3 The respondent also submitted that the complainant has not put forward evidence to support the position that victimisation, as defined under the Acts, took place.
3.4 The respondent sought a ruling on the time limit issue which also gives rise to consideration of the jurisdiction issue.
4. FINDINGS AND CONCLUSIONS OF THE EQUALITY OFFICER
4.1 The issue for decision by me is whether or not the acts complained of fall within the jurisdiction of the Tribunal or, in the alternative, within the time-limits proscribed by the Acts.
4.2 The complainant's case rests on three acts of alleged discrimination. The first act is dated 25 June 2003 and refers to the date of Certification (D33) by the Chief Medical Offficer. The second act, dated 25 July 2003, refers to the retirement of the complainant on grounds of ill health. The third act, dated 16 December 2004, refers to the receipt of a letter from the first named respondent on foot of a Freedom of Information request. In relation to the third act, the respondent submitted that the CMO had discovered an 'administrative error' and had rectified it on 13 July 2003 whereby he erroneously referred to having "examined the complainant" rather than having examined the case. It was this information that the complainant became aware of following 16 December 2003.
4.3 In Berkeley Court Hotel and G (EDA052), the Labour Court noted that
"It is clear that the decision not to return the complainant to her original position, thus giving rise to the claim, was made in April 2001. This decision was crystallised by the letter of 2nd May 2001 conveying the decision and offering her alternative employment."
4.4 In the instant case, I am satisfied that the decision to retire the complainant on grounds of ill health crystallised on or before 25 July 2003. This decision was communicated to the complainant at that time. I am further satisfied that receiving copies of the documentation surrounding the decision does not constitute a further consideration of the decision or even constitute conveyance of the original decision. Section 37(6) of the Employment Equality Act 1998 states that
"In relation to discrimination on the age ground or the disability ground, nothing in this Part or Part II applies to employment ... in the Garda Síochána."
As the provisions of Section 37(6) of the Employment Equality Acts remained in force until 19 July 2004, I find that the Tribunal has no jurisdiction to investigate this matter.
4.5 Although the complainant submitted that he had been victimised, when questioned on the issue, following clarification of the definition of victimisation under the Acts, the complainant did not put forward evidence or examples of victimisation that had taken place. Accordingly, this element of the complaint fails.
5. DECISION
5.1 Having considered all the written and oral evidence presented to me, I find that the Tribunal has no jurisdiction to investigate this matter and the complaint fails.
5.2 In relation to the claim of victimisation, I find that no evidence of victimisation as defined in the Acts has been put forward, and this element of the complaint fails.
Conor Stokes
Equality Officer
15 September 2009