Equality Officer's Decision No: DEC-E/2011/161
Parties
Giblin
And
Bank of Ireland Asset Management Ltd.
(Represented by Mason Hayes & Curran - Solicitors)
File No: EE/2008/609
Date of issue: 2 September, 2011
Headnotes: Employment Equality Acts 1998- 2008 - section 77A - timelimits -- frivolous & vexatious
1. DISPUTE AND BACKGROUND
1.1 The complainant referred a complaint to the Equality Tribunal on 10 September, 2008 alleging that the respondent had (i) discriminated against him on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts as regards his conditions of employment, (ii) dismissed him in circumstances amounting to discrimination on grounds of disability, in terms of section 6(2) of the Employment Equality Acts, 1998 - 2008 and contrary to section 8 of those Acts, (iii) failed to provide him with reasonable accommodation in terms of section 16 of the Employment Equality Acts, 1998-2008, (iv) victimised him in terms of section 74(2) of the Employment Equality Acts, 1998-2008 and (v) dismissed him in circumstances amounting to victimisation in terms of section 74(2) of the Employment Equality Acts, 1998-2008. The respondent rejects the complainant's assertions in their entirety and notwithstanding that submits the complaint should be dismissed as frivolous and vexatious in accordance with section 77A of the Employment Equality Acts, 1998-2008.
1.2 In accordance with his powers under the Acts the Director delegated the complaint to the undersigned - Vivian Jackson, Equality Officer, for investigation, decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. My investigation of the complaint commenced on 16 March, 2011 - the date the complaint was delegated to me. Submissions were received from both parties and on examination of same it appeared to me that a question of whether or not the complaint had been referred to this Tribunal in accordance with the timelimits prescribed at section 77(5) of the Acts arose. Consequently, I decided to investigate this question as a preliminary issue in accordance with section 79(3A) of the Acts. The parties were advised by letter dated 13 April, 2011 that a Hearing on this preliminary issue would take place in the Tribunal on 10 June, 2011. Shortly before the Hearing was due to take place the complainant's representative (he was legally represented at that time) advised the Tribunal that its client was unable to attend for medical reasons. In the circumstances the Hearing was adjourned and was rescheduled on two subsequent occasions will also had to be adjourned due to the unavailability of the parties' legal representatives. The Hearing was finally rescheduled for this Tribunal on Monday 5 September, 2011 and the parties were advised of these arrangements by letter dated 13 July, 2011.
1.3 By letter dated 29 July, 2011 the solicitors on record for the complainant notified this Tribunal that it was no longer representing him in the matter and requested that all further correspondence be sent direct to the complainant at his home address. In this letter the solicitors also advised that the complainant was no longer seeking to rely on a letter dated 21 March, 2006 from the respondent to him, which had been mentioned in his submission to this Tribunal. In accordance with the standard practice of the Tribunal this correspondence was copied to the respondent's legal representative for information. The respondent's representative replied on 10 August, 2011 submitting that in light of the fact the complainant was no longer seeking to rely on a letter of 21 March, 2006 the matter should be dismissed as frivolous and vexatious in accordance with section 77A of the Employment Equality Acts, 1998-2008. This correspondence was copied to the complainant for information and response and was he advised that I would proceed with the respondent's application under section 77A should he fail to reply. He was also requested to confirm the comments made by his previous legal advisor - that he was no longer seeking to rely on a letter from the respondent dated 21 March, 2006. The complainant confirmed the position as outlined by his previous solicitor but did not address the former matter.
2. SUMMARY OF COMPLAINANT'S CASE
2.1 The complainant states that he commenced employment with the respondent on 31 October, 2000. He adds that in February, 2002 he was diagnosed with a particular condition (details supplied) which resulted in him being certified as unfit for work and he never resumed duty with the respondent. The complainant further states that on 11 April, 2005 he wrote to the respondent's Human Resources Manager with whom he had been dealing (Ms. A) to advise that he had encountered some difficulty in obtaining payment from the Income Continuance Process facilitated by the respondent. He adds that Ms. A replied by letter dated 19 April, 2005 - in which she referred to her previous letter of 4 April, 2005 requesting him to return to work by 18 April, 2005 - and stated that in light of his failure to comply with that request his employment had been terminated with effect from 1 March, 2005. The complainant states that although Ms. A advised that his P45 would issue within the week he never received it.
2.2 The complainant states that he subsequently wrote to the respondent on a number of occasions and on each occasion the respondent's reply contained comments to the effect that his employment with it had ceased but adds that as he had not received his P45 he believed any decision to terminate his employment by the respondent had not been finalized or put into effect. The complainant asserts that Ms. A wrote to him on 21 March, 2006 requesting that he attend at the respondent's Occupational Physician (Dr. C) for a medical appointment expressly due to his extended absence from work. He states that he was reassured to receive this letter as it supported his belief that the termination of his employment had not in fact been implemented. The complainant adds that Dr. C wrote to him on 24 April, 2006 advising that as he was no longer an employee of the respondent it was inappropriate for him to meet with the complainant. He states that he did not consider Dr. C to have the authority to terminate his employment and he was relying on the previous correspondence from Ms. A that his employment was still on-going. By letter dated 10 August, 2011 the complainant confirmed his previous solicitor's comments to this Tribunal that he is no longer relying on any letter to him from Ms. A (dated 21 March, 2006) as part of his complaint.
2.3 The complainant states that he wrote to the respondent on 1 April, 2008 enclosing a medical certificate confirming his fitness to resume duty within the following six months. He adds that Ms. A replied informing him that his employment with the respondent had ceased on 1 March, 2005 and there was no basis for his suggested return to work. The complainant states that further correspondence flowed between the parties and on each occasion the respondent reaffirmed its position - that his employment had ceased on 1 March, 2005. The complainant submits that the respondent's position is inconsistent with its actions over the period - particularly the fact that he had been attending the respondent's Occupational Physician during this period.
3. SUMMARY OF RESPONDENT'S CASE
3.1 The respondent rejects the complainant's assertions in their entirety and notwithstanding this submits that the complaint should be dismissed as frivolous and vexatious in accordance with section 77A of the Employment Equality Acts, 1998-2008. The respondent states that at all times from 19 April, 2005 it consistently indicated to the complainant that his employment had been terminated with effect from 1 March, 2005. It adds that at all times between 2005 and 2008 the language and content of any correspondence it issued to the complainant did not permit any ambiguity as to the circumstances which prevailed - i.e. the complainant's employment had ceased on 1 March, 2005. It further states that the complainant's P45 issued to him at his home address on 25 April, 2005 in accordance with the timeframe set out in Ms. A's letter of 19 April, 2005.
3.2 The respondent rejects the complainant's assertion that Mr. A wrote to him on 21 March, 2006 requesting him to attend its Occupational Physician (Dr. C) for a medical examination. It adds that the complainant had arranged (and attended) appointments with Dr. C on 27 October, 2005 and 6 April, 2006 without its knowledge or permission and when Dr. C brought this fact to the respondent's notice Ms. A advised that the complainant was no longer one of its employees and Dr. C wrote to the complainant (as outlined at paragraph 2.2 above) on 24 April, 2006. The respondent notes the contents of the complainant's letter of 10 August, 2011 to this Tribunal - that he that he is no longer relying on any letter to him from Ms. A dated 21 March, 2006 as part of his complaint. It submits, that in the circumstances where, (i) the complainant is no longer able to support his assertion that he remained as an employee of the respondent after 1 March, 2005 (or in the alternative 19 April, 2005 - the date the respondent confirmed in writing the termination of his employment), (ii) any discrimination of the complainant by the respondent must necessarily have occurred before either of those dates and (iii) the complainant referred his complaint to this Tribunal on 10 September, 2008 - almost three and a half years after any recent alleged incident of discrimination, then the complaint is out of time and the Tribunal should exercise its powers under 77A of the Acts and dismiss the complaint as frivolous and vexatious.
4. CONCLUSIONS OF EQUALITY OFFICER
4.1 The issue for decision by me is whether or not this complaint should be dismissed as frivolous and vexatious in accordance with section 77A of the Employment Equality Acts, 1998-2008. In reaching my Decision I have taken into account all of the submissions made to me on the matter.
4.2 Section 77A of the Acts provides as follows: -
(1) The Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.".
In Farley v Ireland & Others the Supreme Court stated as follows -
"So far as the legality of the matter is concerned frivolous and vexatious are legal terms, they are not pejorative in any sense....It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case. Similarly, it is a hardship on the defendant to have to take steps to defend which cannot succeed and the law calls this vexatious.".
These principles were subsequently reiterated by the Supreme Court in Fay v Tegral Pipes Ltd & Others. It is clear therefore that when deciding whether or not to dismiss a complaint as frivolous or vexatious in terms of Section 77A of the Acts I must be satisfied that the complainant has no reasonable chance of succeeding in his complaint.
4.3 The central issue in this complaint is the date the respondent terminated the complainant's employment. The respondent submits that the last (if any) act of discrimination occurred on 19 April, 2005 - the date it formally advised the complainant in writing that his employment was terminated with effect from 1 March, 2005. The respondent further submits that all of its subsequent correspondence to the complainant reaffirmed this position and left no room for doubt as to the circumstances which prevailed. The complainant rejects this assertion arguing that the actions of the respondent during this period, in particular its request of 21 March, 2006 for him to attend at its Occupational Physician and its continued failure to issue his P45, are inconsistent with this position and support his belief that the termination of his employment had not in fact been implemented. The respondent submitted copies of all seven letters it issued to the complainant between 4 April, 2005 and 26 May, 2008 in relation to the termination of his employment and it is abundantly clear that the complaint had (i) notice of the possible termination of his employment on 4 April, 2005, (ii) confirmation of the termination of his employment on 19 April, 2005 and (iii) consistent reaffirmation that this was the position on each of the five subsequent occasions the respondent wrote to him. In addition, the respondent's Occupational Physician advised him of the same position on 24 April, 2006. The respondent also furnished the Tribunal with a copy of the complainant's P45 which is dated 25 April, 2005 and shows the last date of employment as 1 March, 2005 and I am satisfied, on balance, that this was forwarded to the complainant around that time. In light of the foregoing I am satisfied that the position of the respondent was consistent during this period and that it communicated this position to the complainant on each occasion it corresponded with him.
4.4 The complainant originally contended that the respondent (Ms. A) wrote to him on 21 March, 2006 requesting him to attend an appointment with its Occupational Physician expressly due to his extended absence from work. He further stated that he was reassured to receive this letter as it supported his belief that the termination of his employment had not in fact been implemented by the respondent. The respondent denied that any such letter issued. On 29 July, 2011 the solicitor on record for the complainant at that time advised the Tribunal in writing that the complainant was no longer relying on his original contention that the respondent issued the letter of 21 March, 2006. This position was subsequently confirmed by the complainant in writing on 10 August, 2011. The complainant has adduced no other evidence to support his contention that the respondent had not terminated his employment in April, 2005. I am therefore satisfied that the last possible date of any alleged discrimination of the complainant, based on the facts of this case, was 19 April, 2005. The complaint was referred to this Tribunal on 10 September, 2008 - some three and a half years later - which is outside the timelimits prescribed at section 77(5) of the Acts. In light of my comments in this and the preceding paragraphs I find that the complainant has no prospect of succeeding in his complaint and I dismiss the complaint as frivolous and vexatious in accordance with section 77A of the Employment Equality Acts, 1998-2011.
5. DECISION OF THE EQUALITY OFFICER
I find that this complaint is frivolous and vexatious in terms of section 77A of the Employment Equality Acts, 1998-2011 and I dismiss the complaint on that basis in accordance with powers conferred on me under that provision.
_______________________________________
Vivian Jackson
Equality Officer
2 September, 2011.