FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 77(12), EMPLOYMENT EQUALITY ACTS, 1998 TO 2008 PARTIES : DUBLIN CITY COUNCIL - AND - MARCEL DINU DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal under Section 77(12) of the Employment Equality Acts, 1998 to 2008
BACKGROUND:
2. The Claimant referred his case to the Labour Court on the 5th January, 2010, in accordance with Section 77(12) of the Employment Equality Acts, 1998 and 2008. A Labour Court hearing took place on the 6th May, 2011. The following is the Court's Determination:-
DETERMINATION:
The matter comes before the Court pursuant to an appeal by the Complainant against a Direction of the Equality Officer that was made pursuant to Section 77(5) of the Employment Equality Acts 1998 to 2008 (the Acts).
Background: -
The Complainant referred a complaint to the Equality Tribunal on 21st September 2009 alleging that he was discriminated against on the race ground by the Respondent between April 2004 and December 2008. As the complaint was submitted to the Equality Tribunal more than 6 months but less than 12 after the alleged discriminatory act occurred the Complainant by letter of 7th September 2009, sought an extension of the time limit pursuant to Section 77(5) of the Acts.
On behalf of the Director of the Equality Tribunal a Direction was issued in the following terms:
- “It is my opinion that the complainant has not established reasonable cause for the delay in referring his complaint. I, therefore, am not empowered to direct an extension of time in which to refer a complaint to twelve months in this case.”
This Direction was appealed to the Labour Court pursuant to Section 77(12) of the Acts.
Section 77(12) of the Acts provides for an application to the Court by a complainant against a decision of the Director not to grant an extension of time under Section (6) of the Act.
Section 77(12) of the Acts states:
- 12) (a) Not later than 42 days from the date of a decision of the Director on an application by a complainant for an extension of time under subsection (6), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director specifying the grounds of the appeal.
(b) On the appeal the Labour Court may affirm, quash or vary the decision.
(c) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Director on such an application until- (i) the period of 42 days mentioned in paragraph (a) has expired, or
(ii) any appeal against it has been determined
whichever first occurs
- (i) the period of 42 days mentioned in paragraph (a) has expired, or
The Complainant was informed that he was being provided with an opportunity to seek advice on the matter and given a deadline date of 31st May 2011 to respond. A response was received on his behalf complied by the Free Legal Advice Centres at the request of the Citizens Information Service within this timeframe. This outlined the legislative position and suggested an amendment of the legislation at the earliest juncture to afford the Complainant a fresh opportunity to appeal against the Director’s refusal to allow an extension of time.
The Respondent did not dispute the Court's view of the legislation.
The Conclusions of the Court
Section 77(12) of the Acts provides for an appeal to the Court by a Complainant against a decision of the Director not to grant an extension of time under Section 77(6) of the Acts.
In this case the Director made a Direction pursuant to Section 77(5) of the Acts. The Court is asked to consider an appeal against that decision under Section 77(12) of the Acts. Section 77(12) provides for appeals against decisions made pursuant to Section 77(6) of the Acts but does not provide a similar provision for appeals against decisions made pursuant to Section 77(5) of the Acts. Accordingly, on the face of it the Court has no statutory jurisdiction to consider such an appeal and no grounds have been submitted by or on behalf of the Complainant to alter that position.
The Court determines that it does not have jurisdiction to hear the appeal under Section 77(12) against a decision of the Director not to issue a Direction to extend time pursuant to Section 77(5) of the Acts.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd June 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.