FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : AN GARDA SIOCHANA (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - MICHAEL MURPHY (REPRESENTED BY COLM BURKE & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal Under Section 83 Of The Employment Equality Acts, 1998 To 2008
BACKGROUND:
2. The Worker appealed the Decision of the Equality Officer to the Labour Court on the 20th October, 2011. A Labour Court hearing took place on the 29th March, 2012. The following is the Court's Determination
DETERMINATION:
- This is an appeal by A Worker against the decision of the Equality Tribunal in in claim against the Commissioner of An Garda S�ochána under the Employment Equality Acts 1998 to 2011. For ease of reference the parties are referred to as they were at first instance. Hence, the Worker is referred to as the Complainant and the Commissioner of An Garda S�ochána is referred to as the Respondent.
The substance of the Complainant’s claim under the Act is that the Respondent discriminated against him on grounds of disability in the course of a recruitment process for the Garda Force. The Respondent contends that the within claim was not properly before the Equality Tribunal, and is not now properly before the Court, by reason of the Complainant’s failure to comply with ss.77(7) and 77(8) of the Acts. In these circumstances, it is submitted, the Equality Officer lacked jurisdiction to investigate the substantial complaint and that this Court is similarly circumscribed.
Section 77(7) of the Act provides: -- (7) Where the complainant's claim for redress is in respect of discrimination
- (a) by the holder of a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004 in the course of such a recruitment or selection process as is referred to in section 76(5)(a) ,
(b) by the Minister for Defence in the course of a recruitment process for the Defence Forces, or
(c) by the Commissioner of the Garda S�ochána in the course of a recruitment process for the Garda S�ochána,
- (a) by the holder of a recruitment licence under the Public Service Management (Recruitment and Appointments) Act 2004 in the course of such a recruitment or selection process as is referred to in section 76(5)(a) ,
By way of a preliminary ruling, the Equality Officer of the Equality Tribunal held that he lacked jurisdiction in the case by reason of the Complainant’s failure to comply with the statute. The Complainant appealed to this Court.
The Court determined that it would deal first with the preliminary question of whether the decision of the Equality Tribunal on the question of jurisdiction was correct.
Facts
The material facts are not in dispute and can be summarised as follows: -
The applied to join An Garda S�ochána but was unsuccessful. The reason given for the rejection of his application was that he was considered unfit for policing duties. The Complainant wrote to an Assistant Commissioner of the Respondent expressing his disappointment at the decision to reject his application and seeking further information concerning the reasons relied upon. That information was provided by letter dated 7thAugust 2007.
The Complainant refereed a complaint under the Acts to the Equality Tribunal on 13thSeptember 2007. On the same day the Complainant sent a statutory questionnaire to the Respondent pursuant to s.76 of the Acts. The Respondent replied to this questionnaire on or about 17thOctober 2007. Written submissions were filed with the Equality Tribunal by the Complainant in or about October 2008 and these submissions were furnished to the solicitors for the Respondent on or about 29thOctober 2008. The Respondent filed replying submissions on or about 30thJanuary 2009.
In its written submission filed on 30thJanuary 2009 the Respondent raised a preliminary issue concerning the applicability of s.37(3) of the Act in relation to the Complainant’s case. The case was set down for hearing by the Equality Tribunal on 8thJune 2011. By letter dated 27thMay 2011 Solicitors for the Respondent wrote to the Equality Tribunal asking that the jurisdictional question be dealt with by way of a preliminary hearing. The Respondent further relied on a decision of High Court in proceedings entitledAn Garda S�ochána v The Equality Tribunal, Unreported, Charleton J. 17thFebruary 2009, in advancing a claim that the Equality Tribunal lacked jurisdiction to investigate the within claim. On 7thJune 2011, the day before the scheduled hearing before the Equality Tribunal, the Solicitor for the Respondent sent a fax to the Equality Tribunal and the Complainant raising an additional preliminary objection to the jurisdiction of the Equality Tribunal on the basis that the Complainant had not complied with s.77(7) of the Act. It is common case that this point had not previously been raised or pleaded by the Respondent in its defence to the claim.
Position of the parties on the Appeal
The Complainant contends that he wrote to an Assistant Commissioner of An Garda S�ochána in July 2007 expressing his disappointment at being rejected in the recruitment process and that this letter should be regarded as sufficient compliance with s.77(7) of the Act. Without prejudice to his contention in that regard the Complainant submitted that the Respondent is estopped from relying on his alleged failure to comply with s.77(7) by having failed to raise this point in its reply to the request for information, submitted pursuant to s.76 of the Act, given in October. The Complainant further contends that the Respondent is estopped by acquiesce from relying on s.77(7) of the Act, having failed to raise this matter earlier and by treating the Complainant claim as being validly before the Equality Tribunal.
The Respondent contends that the within claim was not properly before the Equality Tribunal because of the Complainant’s failure refer his claim for redress, in the first instance, to the Commissioner of An Garda S�ochána. The Respondent contends that since the claim was not properly before the Equality Tribunal the Equality Officer could have no jurisdiction to investigate the claim and that the Equality Officer was correct in so holding.
Conclusion of the Court
Section 77(7) of the Act, the terms of which is recited above, must be read in conjunction with subsection (8) off that section, as amended. It provides: -- (8) Where subsection (7) applies to a claim for redress in respect of discrimination, the complainant may not refer the case under subsection (1), or (3) unless—
- (a) the holder of the recruitment licence concerned or, as the case may be, the Minister for Defence or the Commissioner of the Garda S�ochána have failed to give a decision on the claim on or before the twenty-eighth day after it was referred, or
(b) the complainant is not satisfied with the decision given on the claim, and in a case to which paragraph (a) or (b) relates, the end of the period of time which is applicable under subsection (5) (including, where appropriate, applicable under that subsection by reference to subsection (6)) shall be construed as—
(i) the end of that period, or
(ii) the end of the period of 28 days from the expiration of the period referred to in paragraph (a) or the date of the decision referred to in paragraph (b) , whichever last occurs.
- (a) the holder of the recruitment licence concerned or, as the case may be, the Minister for Defence or the Commissioner of the Garda S�ochána have failed to give a decision on the claim on or before the twenty-eighth day after it was referred, or
The within claim is directed against the Commissioner of An Garda S�ochána and relates to a recruitment process for An Garda S�ochána. It is clear that s.77(7) and 77(8) of the Act apply in relation to the initiation of the claim. If the Complainant failed to comply with s.77(7) the effect of s.77(8) is to render his claim to the Equality Tribunal invalid and to deprive the Tribunal and this Court of jurisdiction to investigate the claim. Hence, this case turns on whether or not the Complainant complied with s.77(7) of the Act, and if he did not, whether the Respondent is estopped by its conduct from relying on that failure.
Did the Complainant Comply with s.77(7) of the Act?
The Complainant wrote to an Assistant Commissioner of An Garda S�ochána on 25thJuly 2007 in the following terms: -- “ Re Competition for Selection of Garda Trainees, 2006
Dear Assistant Commissioner
Further to your letter dated 20thJuly 2007, could you please forward me a copy of the statutory conditions and a list of policing duties that I am unfit for.
I am extremely disappointed at this decision, as I have been interested in this career for a long time.
Looking forward to hearing from you.
Yours sincerely.
The Assistant Commissioner replied by letter dated 7thAugust 2007 in which the information requested by the Complainant was provided. The Complainant relies on this letter and amounting to sufficient compliance with s.77(7) of the Act. He contends that it is implicit in the letter that he considered the rejection of his application to join the Force to be discriminatory on the disability ground and that the he was seeking redress for that discrimination.
It seems to the Court that the obligation imposed by s.77(7) encapsulates three essential requirements. Firstly, there must be a communication from the Complainant to the Commissioner. Secondly, the communication must assert that the Complainant suffered identifiable discrimination under the Act. Thirdly the communication must contain a request or demand for redress in respect of the discrimination alleged.
Having considered the content of the letter sent by the Complainant to the Respondent on 25thJuly 2007 the Court cannot accept that it meets the requirements of s.77(7) of the Act. Accordingly the Court is satisfied that the Complainant did not comply with this statutory condition before submitting his claim to the Equality Tribunal.
Estoppel by Conduct
The second point taken on behalf of the Complainant is that the Respondent is estopped from relying on his failure to comply with s.77(7) by reason of its failure to raise the point when the Complainant first presented his claim to the Equality Tribunal or subsequently.
The circumstances in which an estoppel by conduct or acquiescence can arise was considered by the High Court inDunne v Molloy[1977] I.L.R.M. 266. Here Gannon J held that the appropriate principles are those set out in the Judgment of Fry J. inWillmott v Barber(1880) 15 Ch D 96, at 105-106, and adopted by Scarman LJ in inCrabb v Arun District Council[1976] Ch 179. The relevant passage is as follows: -- It has been said that the acquiescence which will deprive a man of his legal rights must amount to fraud, and in my view that is an abbreviated statement of a very true proposition. A man it not to be deprived of his legal rights unless he has acted in such a way as could make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of the description. In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s lands) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done either directly or by abstaining from asserting his legal right.
- (7) Where the complainant's claim for redress is in respect of discrimination
Gannon J then continued: -
- I respectfully agree with the comment which then follows upon that passage made by Scarman LJ in his judgment (at 194) which is as follows:
But it is clear that whether one uses the word‘fraud’or not, the plaintiff has to establish as a fact that the defendant, by setting up his right, is taking advantage of him in a way which is unconscionable, inequitable or unjust. It is to be observed from the passage that I have quoted from the judgment of Fry J that the fraud or injustice alleged does not take place during the course of negotiation, but only when the defendant decides to refuse to allow the plaintiff to set up his claim against the defendant’s undoubted right. The fraud, if it be such, arises after the event, when the defendant seeks by relying on his right to defeat the expectation which he by his conduct encouraged the plaintiff to have.
By application of the principles enunciated in that case, in order to establish an estoppel by conduct or acquiescence the Complainant would have to show that the Respondent acted dishonestly or disreputably in failing to alert him to his own failure to comply with s.77(7) of the Act so as to make it unconscionable, inequitable or unjust to allow the Respondent to now rely on that failure. There is on basis upon which the Court could reach such a conclusion. The Complainant was professionally represented in making his claim and the Respondent had no responsibility to identify, or alert him to, any deficiency in his application. The facts of the matter are that the Respondent, had not adverted to the requirements of s.77(7) when the claim was initiated and it was only when Counsel was advising on proofs that the Complainant’s failure to comply with that provision came to light. At that stage the matter could not be rectified.
There is a further consideration in this case. As the Court has already held, s.77(7) appears to prescribe a condition precedent to the Court’s jurisdiction in a complaint to which the subsection relates. In these circumstances the Court has very considerable doubt as to whether the doctrine of estoppel could operate so as to confer on the Court a jurisdiction that it does not have.
Determination
For all of the reasons set out above the Court has concluded that the Equality Officer correctly declined jurisdiction to investigate the Complainant’s substantive case. Accordingly the Court must disallow the appeal and affirm the decision of the Equality Tribunal.
Signed on behalf of the Labour Court
Kevin Duffy
3rd April, 2012______________________
COFChairman
NOTE
Enquiries concerning this Determination should be addressed to Colm O'Flaherty, Court Secretary.