THE EQUALITY TRIBUNAL
EMPLOYMENT EQUALITY ACTS 1998-2011
Decision DEC - E2012 - 173
PARTIES
Mr Anthony Rafferty (represented by Ms Rosemary Mallon BL, instructed by Joanne Hoban and Co., Solicitors)
v.
Finglas Sports Development Group (represented by Patrick F. O'Rourke & Co., Solicitors)
and
FÁS (represented by William Fry, Solicitors)
File References: EE/2010/116 & EE/2010/118
Date of Issue: 12th December 2012
Headnotes: Employment Equality Acts - Age - Discriminatory Dismissal - S. 77(5) Time Limits - Reasonable Cause - No Jurisdiction
1. Claim
1.1. The case concerns a claim by Mr Anthony Rafferty that Finglas Sports Development Group and FÁS discriminated against him on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2008, in terms of conditions of employment, discriminatory dismissal and other discriminatory conduct.
1.2. The complainant referred complaints against both respondents under the Employment Equality Acts 1998 to 2008 to the Director of the Equality Tribunal on 28 February 2010. A submission was received from the complainant on 8 December 2010. No submission was received from the first-named respondent, but a submission was received from the second-named respondent on 20 January 2011. On 18 June 2012, in accordance with his powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, 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. As required by Section 79(1) of the Acts and as part of my investigation, I proceeded to hold a joint hearing of the cases on 30 November 2012. Additional evidence was requested from the complainant at the hearing and received on 7 December 2012.
2. Summary of the Complainant's Written Submission
2.1. The complainant states that his date of birth is 2 August 1943. He was employed by the first-named respondent on one-year fixed term contracts since July 2004, as a general operative. These contracts were renewed each year in 2005, 2006, 2007, 2008, and 2009. The complainant does not have copies of these contracts.
2.2. Once the complainant had turned 66 on 2 August 2009, he continued to work for a short while for the first-named respondent, but in or around 21 August 2009, he received his P45 and was informed that his contract was terminated because he had turned 66. The complainant states that he was dismissed solely on the ground of his age.
3. Summary of the Respondents' Written Submissions
3.1. As noted above, the first-named respondent did not make a written submission to the Tribunal.
3.2. The second-named respondent denies discriminating the complainant as alleged or at all. It submits that it is a stranger to the complaint, as it was not the complainant's employer within the meaning of the Acts. It submits that the complainant was in the employment of the first-named respondent under a CE Scheme, an active labour-market programme financed by the second-named respondent.
3.3. The second named respondent does not make funding available to CE sponsors, such as the first-named respondent, in respect of participants or supervisors aged 66 years or over. This follows a direction of the Department of Enterprise, Trade and Employment, as it was then, in 2005. The reason for this direction, for which the second-named respondent submitted a response to a Parliamentary Question by the Department in evidence, is that people become eligible for the State pension at age 66, and should therefore not be also eligible for labour market measures.
4. Conclusions of the Equality Officer
4.1. A preliminary issue in this case is whether it was brought within the time limits specified in S. 77(5) of the Acts, and therefore, whether I have jurisdiction to investigate the matter.
4.2. Counsel for the complainant submitted an application for extension of time pursuant to the provisions of S. 77(5) of the Acts. She submits on behalf of the claimant that he did not seek legal advice until 26th February, 2010, and that once he did so, his complaints were communicated to the Tribunal without delay. She further submits that the delay in submitting the complaints only amounted to a few days. She submits that this both justifies and explains the delay as per established case law.
4.3. The complainant's EE1 complaint forms against both respondents were received by the Tribunal on 26 February 2010. They are dated and signed by the complainant the same day, and list J.C. Hoban & Co. as the complainant's solicitors. At the hearing of the complaint, the complainant produced his P45 form which he received from the first-named respondent, which shows that the day on which his employment terminated was 21 August 2009, which brings the complaints outside the six-month time limit specified in S. 77(5) of the Acts. Pursuant to the High Court findings in The Minister for Finance v. The Civil and Public Service Union and others [2006 IEHC 145], the onus is on the party wishing to avail of an extension of time pursuant to the provisions of what was then S. 19(5) of the Employment Equality Act 1977, of which S. 77(5) is the equivalent provision under the Employment Equality Acts 1998 to 2011, to make an application to this end to the court or judicial body seized of the matter. However, no such application in respect of either case was received by the complainant or his solicitors until the above submission was received, which was until after I adjourned a hearing of the complainant's cases to give counsel for the complainant an opportunity to make additional submissions, and nearly two years after the complainant's main submissions were received through his solicitor.
4.4. It is trite law that in order to show "reasonable cause" for a delay in submitting a complaint beyond the statutory time limits, a complainant has to advance reasons which both explain and justify the delay. The Labour Court, in the recent decision Dundalk Institute of Technology v. Colletta Dalkieni [EET122] recently canvassed what amounts to "reasonable cause" in a case with a similar time gap (4 February to 15 August). In that case, the complainant could demonstrate that she
- was of the belief that the respondent was making efforts to address the alleged discrimination;
- she was involved in a formal investigation, which, she had been assured, would be finished within one month (but was ultimately only finished the following January);
- she was suffering from ill-health as a result of the respondent's actions;
- she only decided to refer a complaint to the Tribunal when she was no longer assured that her complaint was appropriately addressed by the respondent.
The Court found that all these factors amounted to reasonable cause within the meaning of the Acts for submitting her complaint outside the statutory time limits.
4.5. In contrast, the application on hand discloses no major new reasons (such as, for example, severe illness), which prevented the complainant from consulting his solicitor earlier, which would make it under all circumstances unfair to deny the complainant access to justice. Furthermore, the time limits which apply under the Acts are clearly spelled out both on the Equality Tribunal website and the Citizens Information website, rendering the information accessible, in clear language, to citizens without special legal training. They are not an arcane point of statutory interpretation, and they must equally be observed by complainants who choose to represent themselves and do not have the benefit of legal advice. Therefore I find that simply being late in consulting a solicitor, while it might explain any such delay, does not justify same, and that I am bound in this matter by the decision of the Supreme Court in The State (Aer Lingus Teo) v. Labour Court (No. 1) [1987 ILRM 373], where it was held that the courts are obliged to interpret the above provisions on time limits strictly where reasonable cause for an extension has not been shown.
4.6. In legal terms, counsel for the complainant argued at the hearing that her client had not received his minimum notice pursuant to the provisons of the Minimum Notice and Terms of Employment Act, 1973, and that, had his employment been terminated in accordance with that Act, his last date of employment would have been the 27th August, 2009. However, she accepted that her client did not have a Rights Commissioner decision showing that his rights had been violated as alleged.
4.7. In her subsequent legal submission, she stated that while the complainant's contract with the first-named respondent did not include a contractual notice period, his complaint should be treated as if he had been entitled to one week's statutory notice, based on the fact that he was in receipt of a number of one year fixed term contracts in accordance with the provisions of the Minimum Notice and Terms of Employment Act, 1973 - essentially a restatement of her oral argument as outlined above.
4.8. In the alternative, counsel for the complainant argued that since the complainant had a one year fixed-term contract which, if it had not been terminated, would have continued for a significant number of months, I should treat his discrimination as ongoing, and therefore his complaints as having been brought in time.
4.9. I can not accept either of these arguments. This Tribunal has always held, in cases of alleged discriminatory dismissal, that the date of dismissal is either:
- The date on which a dismissal is orally communicated to an employee, if such a date is not in dispute;
- The date of any letter by which a termination of employment might be communicated between the parties or
- The date given on the P45 form.
4.10. In the instant case, the date on the P45 form is the 21 August 2009, and it is the only documentary evidence which exists for the termination of the complainant's employment. Accordingly, I find that I do not have jurisdiction to investigate the matter.
5. Decision
5.1. Based on all of the foregoing, I find, pursuant to S. 79(6) of the Acts, that I lack jurisdiction to investigate whether the respondents discriminated against, and discriminatorily dismissed Mr Rafferty on the ground of his age contrary to Sections 8(1) and 8(6) of the Acts, because the complaint was brought outside the time limits set down in S. 77(5) of the Acts.
______________________
Stephen Bonnlander
Equality Officer
12 December 2012