THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2008
DEC-E2011-034
Joan Malone
versus
Health Services Executive
(represented by Maria Dillon, Scanlon and Co. Solicitors)
File reference: EE/2008/371
Date of issue: 28th February 2011
Keywords: Employment Equality Acts, Victimisatory Dismissal, Time limits
Dispute
1.1 The case concerns a claim by Ms Joan Malone against the Health Services Executive. Her claim is that she was victimisatorily dismissed within the meaning of Employment Equality Acts 1998 - 2008 [hereinafter referred to as 'the Acts'].
1.2 The complainant referred a complaint under the Acts to the Director of the Equality Tribunal on 10th June 2008. On 5th October 2010, in accordance with his powers under Section 75 of the Acts, the Director delegated the case to me, Orlaith Mannion, 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. Submissions were received from both parties and a joint hearing was held on 19th January 2010 as required by Section 79(1) of the Acts.
Summary of the complainant's case
2.1 The complainant joined the staff of Naas General Hospital in April 1986 as a radiographer. The complainant submits that she had raised various health and safety issues with management of the hospital which were ignored. Subsequent to her bringing management's attention to these issues, she was taken off 'on call' duty. This radically reduced her income and, she submits, this constitutes harassment. She made complaints about these issues to the Rights Commissioners' Service of the Labour Relations Commission in September 1996.
2.2 in September 1997 she contends that she felt obliged to take a yearlong career break because of the pressure she was under and because she wished to pursue a postgraduate qualification. During this time she wrote the then Eastern Health submitting she was claiming constructively dismissal because of the alleged harassment prior to her career break.
2.3 She does not dispute that, at the Rights Commissioner's hearing in 1999, there was a settlement agreed between her and the Eastern Health Board but denies it was in relation to the termination of her employment. That is why she initiated High Court proceedings regarding wrongful dismissal.
2.4 She submits that the discrimination is ongoing as she is unable to obtain a reference from the Health Services Executive.
Summary of the respondent's case
3.1 The respondent submits that the complainant resigned from her post with the former Eastern Health Board on 29th September 1997 when she stated in writing that she was constructively dismissed. However, a rights commissioner brokered an agreement between both parties on 29th January 1999. The respondent made a 'without prejudice' payment to Ms Malone of £5000 in full and final settlement of any claim in relation to her employment and its termination.
3.2 Notwithstanding the settlement made by the former Eastern Health Board in what was purported to be in full and final settlement of any claim relating to her employment and its termination, the complainant subsequently initiated High Court proceedings. On 26th October 2007 the High Court case was compromised by the Health Services Executive without admission of liability. The respondent submits that one of the reasons they did this is that they knew the complainant would be unable to pay their costs when they won the case.
3.3 They submit that a reference for the complainant was agreed between both parties as part of this settlement. However the HSE maintains neither an employer nor an educational institution has ever sought either a written or oral reference for Ms Malone from them.
3.4 The respondent submits that this complaint is out of time and that because Ms Malone has initiated proceedings for damages at common law for wrongful dismissal she is not entitled to seek redress for victimisatory dismissal.
Conclusions of the Equality Officer
4.1 Before I have jurisdiction to examine the substantive complaint, I must first consider whether the claim is within the statutory time limits. I will investigate this as a preliminary issue in accordance with Section 79(3A) of the Acts. Section 77(5) (a) states a claim for redress must be made within six months from the date of the most recent occurrence of alleged discrimination or, on application, this time limit can be extended to twelve months for reasonable cause.
4.2 I accept the respondent's contention that no reference was sought by a potential employer or an educational institution for the complainant. Having examined the voluminous correspondence submitted by the complainant, the latest possible occurrence of alleged discrimination or victimisation by the respondent could be 23rd December 1998 when the Employee Relations Manager of the respondent sent the following letter to the complainant:
Dear Ms Malone,
I acknowledge receipt of you letter of the 5th of December addressed to the Personnel Officer. Unless the Health Board hears from you to the contrary on or before the 10th January next, the Eastern Health Board will proceed to regard you as having resigned your post from the Eastern Health Board on the 29th of September 1997 and arrangements will be made for the removal of your name form the Register of Pensionable Officers.
This is without prejudice to the claim which you have referred to for constructive dismissal and which you are free to pursue as you see fit. It should be emphasised on the part of the Eastern Health Board that it does not accept your contention that you were constructively dismissed and the Health Board hereby confirms that it will vigourously defend any such challenge or claim in this regard.
4.3 Ms Malone submitted her complaint to the Tribunal on 10th June 2008. The letter above issued on 23rd December 1998 making Ms Malone's complaint is almost nine years out of time. Therefore the complainant has not complied with the statutory requirements relating to such referrals contrary to Section 77 (5) (a).
Decision
I have concluded my investigation of Ms. Malone's complaint. Based on all of the foregoing, I find, pursuant to Section 79(6) of the Act, that this complaint is out of time and that consequently I do not have jurisdiction to investigate it further.
________________
Orlaith Mannion
Equality Officer