Equality Officer's Preliminary Decision
DEC-E2010-076
Professor Kevin James
(represented by Coakley Maloney Solicitors)
versus
Cork Institute of Technology
(represented by O'Flynn Exhams Solicitors)
File reference: EE/2005/391
Date of issue: 17th May 2010
Keywords: Employment Equality Acts, Discrimination, Age, Promotion, Preliminary issue, time limits
Dispute
1.1 This case concerns a complaint by Professor Kevin James against his employer Cork Institute of Technology that he was discriminated against on the grounds of age in terms of 6 (2)(f) of the Employment Equality Acts 1998-2008 [hereinafter referred to as 'the Acts'] regarding access to promotion.
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 30th November 2005. In accordance with her powers under Section 75 of that Acts, the Director delegated the case on 18th April 2008 to Orlaith Mannion, an Equality Officer, for investigation, decision and for the exercise of other relevant functions under the Part VII of the Acts. As there was significant disagreement on the facts of whether or not the complaint was in time, in accordance with 79(3A) decided to hold a preliminary Hearing on 26th November 2009. The last response to information requested was received on 21st January 2010.
Summary of the complainant's written submission
2.1 Professor James's complaint was received by the Tribunal on 30th November 2005. The complainant was interviewed for the post on of Head of Research at Cork Institute of Technology on 30th May 2005 but was informed that he was not successful by letter on 3rd June 2005., Professor James submitted that he only found out that he was not appointed on 3rd June 2005; he, therefore, maintained this is the date of the most recent occurrence of discrimination.
Summary of the Respondent's written submission
3.1 The respondent submits that it is clear from Professor James's complaint form of November 30th 2005 that the alleged discrimination of which the complainant complains is his failure to secure appointment to the post of Head of Research at Cork Institute of Technology. The complaint form states that the 'first occurrence of discriminatory act' was 3rd June 2005. The 'date of most recent occurrence of discriminatory act' was not completed. The respondent submits that the complainant's failure to secure the post occurred at the interview stage on 30th May 2005 by the selection panel after which another candidate was unanimously chosen on that date.
3.2 The respondent submits this is the day that time began to run against the complainant for the purposes of submitting a complainant from that date. According to the respondent, the six-month period for submitting such a complaint expired on 29th November 2005.
3.3 The respondent refers to Section 18 (h) of the Interpretation Act 2005 which states:
Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period.
The respondent also points out that Part 1 of the Schedule to the 2005 Act provides that a 'month' means a calendar month. The respondent refers to Francis Terence McCann versus An Bord Pleanála and Sligo County Council (notice party) where Lavan J stated a calendar month cannot include two days of the same date i.e. it could not include both 7th June 1995 and 7th July 1995.
3.4 Regarding the interaction between the Interpretation Act (in this case the 1937 Act which the 2005 Act mirrors) and the Employment Equality Acts the respondent cite an Equality Tribunal case A Complainant versus A Company . In this case, the complainant referred a complaint of discrimination on 28th April 2000. The last instance of alleged discrimination occurred on 28th October 1999. The Equality Officer found that a six-month period commencing on 28th October 1999 ended on 27th April 2000:
The Act states specifically that a complaint may not be referred after the end of a period of six months from the date of the most recent occurrence. The provision is unambiguous and I am therefore satisfied that a complaint received on 28th April 2000 was the most recent occurrence of an alleged discriminatory act was 28th October 1999 is outside the specified time limit.
3.5 Applying the above authorities to the present case, the respondent submits that the complaint was one day late and that it would prejudice them if the complainant was allowed to mend his ways at this stage and to make an application for an extension of time.
Conclusions of the Equality Officer
4.1The issue for me to decide is whether the complaint submitted his claim with the statutory time limit. The complainant has not made an application for an extension of time.
4.2 I accept the respondent's contention that a cause of action does not accrue when the complainant discovers its existence. In this, I am guided by the recent Labour Court case where the Chairman pointed out 'had the Oireachtas intended to provide a discoverability test it could easily have made such a provision.'
4.3 However, in that case the Court held that a cause of action accrues at the time when all the requisite elements of the action [my emphasis] existed whether or not the plaintiff knew of their existence. At the Hearing on a preliminary issue, the complainant's representative (who was previously not on record) pointed out that all academic appointments have to be approved by the College's Governing Body under the Regional Technical Colleges Act 1992. Section 7(5) of that Act states 'In performing its functions a governing body shall have regard to the attainment of gender equity and of equality of opportunity in education.' Therefore, the selection board do not have the power to appoint an individual to an academic position. The complainant submits as evidence a minute of the Governing Body meeting held on 2nd June approving another candidate for the position of Head of Research. This function is solely reserved by the Governing Body.
4.4Therefore the complainant submits that this is a separate act of discrimination especially when the Governing Body has an obligation to promote 'equality of opportunity'. The complainant states that it is the practice in the Cork Institute of Technology that somebody selected by a selection committee is not allowed to work in an 'acting role' prior to the appointment decision of the Governing Body. I am satisfied it was this date (2nd June) that 'all the requisite elements of the action' occurred. Therefore, the statutory time limit expired on 1st December 2005. The complaint was submitted on 30th November and was therefore within the six-month time limit.
4.5 Regarding the complainant categorising 3rd June 2005 as the 'date of first occurrence of discriminatory act' I am guided by McGovern, J states in relation to an investigation by an other Equality Officer:
I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, the a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But, under the legislation, it is clear that the complaints which are made within that expanded period are not time-barred . [my emphasis]
Decision
I have concluded my investigation of this aspect of Professor James's complaint and hereby make the following decision in accordance with Section 79(6) of the Act:
I find that the complaint is within the statutory time limit.
_______________
Orlaith Mannion
Equality Officer
17th May 2010