FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83, EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : COUNTY DUBLIN VOCATIONAL EDUCATIONAL COMMITTEE (REPRESENTED BY WILLIAM EGAN & ASSOCIATES, SOLICITORS) - AND - TONGAI DODO - (REPRESENTED BY FEMI DANIYAN, B.L., INSTRUCTED BY C.B. ROBINSON & CO., SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal under Section 83 of the Employment Equality Acts, 1998 to 2011.
BACKGROUND:
2. The Employer appealed the Decision of the Equality Officer to the Labour Court on the 7th February, 2013. A Labour Court hearing took place on the 16th July, 2013 and and a second hearing on 1st November, 2013. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Co Dublin VEC against an Equality Officer’s Decision dated 28thDecember 2012 in a claim brought by Mr Tongai Dodo against his former employer alleging harassment, discrimination and victimisation on the race ground.
In line with the normal practice of the Court and for ease of reference the parties are given the same designations as they had at first instance. Hence Co Dublin VEC will be referred to as “the Respondent” and Mr Tongai Dodo will be referred to as “the Complainant”.
The complaint was made under the Employment Equality Acts 1998 –2008 (hereafter the Acts). The Complainant was employed by the Respondent as a Sports Centre Attendant between 16thApril 2008 and 15thDecember 2010.
The Complainant brought proceedings before the Equality Tribunal on 1stOctober 2010 alleging discrimination, victimisation and harassment on grounds of race. The Equality Tribunal found that the Complainant was not discriminated against nor was he victimised. She also found that the Complainant had been harassed by a senior manager by being called a “gorilla”. This incident is alleged to have occurred on 2ndJuly 2008. He was awarded compensation in the amount of €2,000.
The Respondent appealed against the Equality Officer’s Decision under 7.1.(iv) which found that“the complainant was harassed by the respondent on the grounds of race pursuant to section 6(2) and contrary to Section 14A (7) of those Acts.”There was no cross-appeal by the Complainant.
Having read the papers for the case the Court informed both parties before the hearing that as a preliminary matter it would deal with the issue of whether the alleged incident on 2ndJuly 2008 was within time under Section 77(5) of the Acts and consequently informed both parties that it would not be hearing submissions or evidence on the substantive issue at this point.
2.4 Section 77 (5) provides as follows:
"(5) Subject to subsection(6), aclaim for redress in respectofdiscrimination or
victimisation may not be referred under this section after the endofthe period
of 6months from the dateofthe occurrence or, as the case may require, the
most recent occurrenceofthe actofdiscrimination or victimisation to which the
case relates. "
There was some dispute between the parties regarding the date of referral to the Equality Tribunal. The Equality Officer held that the claim was initially referred on
1stOctober 2010 and a further copy of the EE1 Form outlining the details of the alleged discrimination and including a reference to a further alleged incident was submitted to the Equality Tribunal on 21stFebruary 2011.
The Equality Officer held that she had jurisdiction to investigate all matters referred to therein as all of the incidents related to allegations of discrimination on the ground of race. She based this Decision on the High Court Decision inCounty Louth VEC v The Equality Tribunal and Pearse Brannigan, Unreported, McGovern J. 24th July 2009, which found that additional acts which occurred prior to the initiation of the claim could be investigated once the nature of the claim remained the same and the Respondent was on notice of such.
InCounty Louth VECMcGovern, J said:
- “I accept the submission on behalf of the respondent that the form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same. What is in issue here is the furnishing of further and better particulars, although, it must be said, in the context of an expanded period of time. But under the legislation it is clear that the complaints, which are made within that expanded period, are not time-barred. That is not to say that complaints going back over a lengthy period would have to be considered as an issue of prejudice might arise. But this is something that would fall to be dealt with in the course of the hearing in any particular case.
Of course, it is necessary that insofar as the nature of the claim is expanded, the respondent in the claim must be given a reasonable opportunity to deal with these complaints and the procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice.”
The Complainant gave the last date on which the alleged discrimination occurred as being 3rdJune 2010. Thus the Equality Officer was satisfied that the complaint was submitted within the six-month time limit set out in Section 77(5) of the Acts.The Equality Officer found, based on the totality of the evidence given, that the Complainant had not established aprima faciecase of less favourable treatment on the ground of race in relation to the incident on 3rdJune 2010. This finding was not appealed.
Two versions of the Equality Officer’s Decision
It transpired that there were two versions of the Equality Officer’s Decision in circulation. The Court brought this to the attention of the parties and sought clarity/confirmation on the issue before it could proceed with the appeal. Subsequently the Court received a response from Mr William Egan, William Egan & Associates, Solicitors, on behalf of the Respondent, outlining how this situation arose. He told the Court that there was a typographical error in the original Decision which has since been rectified by the Equality Officer. Mr Egan supplied the Court with a copy of a letter from the Equality Tribunal dated 23rdJuly 2013 which enclosed a copy of its letter dated 6thFebruary 2013 to Mr Dodo correcting the typographical error made in the original Decision.
On that basis the Court was satisfied that the Court was furnished with details of the final Decision of the Equality Tribunal in the matter and proceeded to deal with the case.
Summary of the Respondent’s Position on the Appeal
Mr William Egan, Solicitor, William Egan & Associates, Solicitors, on behalf of the Respondent, submitted as a preliminary issue that the initial Form submitted to the Equality Tribunal on 1stOctober 2010 did not reference or refer to the incident which gave rise to the Equality Officer’s finding of harassment.
Mr Egan submitted that even if the Court were to hold that the February 2011 Form EE1 was in effect the delivery of further and better particulars of that which was asserted in the earlier Form, the Equality Officer was wrong to deemit open to her to investigate an incident which took place on 2ndJuly 2008 on the basis that it was an additional act which occurred prior to the initiation of a claim of a similarnature made within the six-month time period prescribed by the legislation.
He submitted that the Equality Officer had misconstrued the provisions of Section 77(5) of the Acts as applying to a claim and/or an allegation of discrimination as opposed to the occurrence of an act of discrimination. In particular, Mr Egan submitted that it was not open to allow a claim for redress in respect of discrimination or victimisation, which on the face of it is statute-barred, on the basis that, where an individual makes a mere allegation and/or a mere complaint, an occurrence of an act of discrimination or victimisation occurred within the statutory period.
The sole occurrence of an act of discrimination in the instant case as has been held to have occurred by the Equality Officer related to an incident which took place on the 2ndJuly 2008. The Equality Officer found no more recent occurrence of any act of discrimination or victimisation than the 2ndJuly 2008 incident. There was no finding of an occurrence of an act of discrimination or victimisation which took place within six months or twelve months of the date of submission of the first Form EE1.
Mr Egan submitted that the mere assertion that an act occurred within six months of the date of redress does not satisfy the provisions of Section 77(5) of the Acts unless there is a determination that such an act of discrimination or victimisation actually occurred, established on the preponderance of the evidence, within the previous six months or previous twelve months if an extension were granted under Section 77(6) (a) and (b) of the Acts.
Mr Egan submittedthat the absence of a cross-appeal precludes the Complainant from arguing that there was the occurrence of an act of discrimination or victimisation within the six-month or twelve-month periods prior to the submission of the claim as would allow him to invoke Section 77(5) of the Acts to link to an allegation relating to an incident which allegedly took place on 2ndJuly 2008.
While the issue of an extension under Section 77(6)of the Actsdid not arise nonetheless had such consideration taken place the result would be the same. On the basis that the claim was submitted on 1stOctober 2010 and that the sole occurrence of an act of discrimination was held to have occurred in respect of an incident which took place on
2ndJuly 2008, when the claim was twenty-two-months out-of-date where time was not extended, and was in any event sixteen months out-of-date if Section 77(6) of the Acts had been considered and deemed potentially applicable.
Accordingly, Mr Egan submitted that the alleged incident of 2ndJuly 2008 was statute-barred.
Summary of the Complainant’s Position on the Appeal
At the hearing before the Court on 17thJuly 2013 the Complainant requested an opportunity to consult with a Solicitor in order to respond to the Respondent’s submission on the preliminary issue. There was no objection to such a request and the hearing was accordingly adjourned.
At the follow-up hearing held on 1stNovember 2013 Mr Femi Daniyan, B.L., instructed by C.B. Robinson & Co, Solicitors, on behalf of the Complainant,submitted that the claim was not statute-barred. He submitted that, although the Equality Tribunal found against the Complainant in respect of the victimisation (sic) alleged to have occurred in June 2010, atthe least it was capable of being construed as victimisation (sic).
Mr Daniyan submitted that all allegations brought beforethe Equality Tribunal are merely allegations until the contrary is established.This, however, does not mean that an allegation is statute-barred if it is the last occurrence pursuant to Section 77(5) of the Acts.Consequently,it does not warrant the entirety of the claim being dismissed. He contended that the timelimitation imposed by the Acts only prevents a matter from being heard or admitted if the alleged occurrence happened outside the time limits rather than whether ornot the occurrenceitself was well-founded.
Mr Daniyan submitted thatthe Complainant’s claim is not statute-barred and the harassment of 2ndJuly 2008 occurred. Consequently, the Complainant must be compensated accordingly.
In support of his contention Mr Daniyan cited the case ofHurley v County Cork VEC DEC -E2010-129wherethe Complainant claimed that she was subject to victimisation by the Respondent contrary to the Acts. The Equality Officer found as follows:
- "I find that the complainant has not establishedaprima facie caseof
victimisation. Therefore, the case fails."
Consequently,it is submitted that the finding in that case was disposed of based on the merits of the substantive aspects of that case.However, in the body of the report under the heading of"Conclusions of the Equality Officer”itstatesinter aliathat:
- "In interpreting section77(5)(a) using everyday language it is clear thataclaim can be extended in circumstances where the complainant refersacomplaint which has been lodged within the required six months ofthe latest incident and the complainant can show facts supporting an on-going situationofsuch occurrence.”
Regarding the provisions of Section 77(6) (a) the Equality Tribunal concluded:
- "This provision envisagesacase ofcontinuing discrimination with the time limit referable to the point at which the discrimination or victimisation ended.It is clear that no claim which is outside the six month time limit is automatically statute barred."
Mr Daniyan submitted that inthe instant case the claim of harassment dating back to
2ndJuly 2008 was not automatically statute barred as suggested. He referred again to theHurleycase, where the Equality Officer referred to the fact that the Complainant added incidents to her written submission at the hearing, which allegedly took place after her written submissions was lodged with the Tribunal. The Equality Officer concluded:
- "Having taken due regard to the authority set out by McGovern J in County LouthVocational Educational Committee v Equality Tribunal [2009 No. 223 J.R.] I am satisfied that provided that the respondent was on adequate notice of the complainant's claim the Tribunal has permission to amend a claim provided that the nature of claim remains the same. The claim throughout is that of victimisation.As part of the alleged chain I have also heard the facts pertaining to the incidents that took place in early 2009. EE1 is not a statutory form and referring to the above authority I am satisfied that provided that the parties are afforded appropriate notice and the procedures adopted by the Equality Officer
are fair and reasonable and in compliance with the principle of natural and constitutional justice the investigation can proceed.I am satisfied that both parties were provided with ample opportunity to present their case to this Tribunal"
- "On the evidence adduced there is no basis whatsoever upon which the Court could conclude that eitherofthe incidents relied upon by the Complainant within the time limit were actsofvictimisation.Accordingly,the Court must conclude that no acts capableofconstituting victimisation occurred in the periodofsix months ending on the date on which she presented her claim to the Equality Tribunal.Accordingly,even if the Complainant's case were to be taken at its height in relation to all other incidents relied upon,they are outside the time limit prescribed bySection77 (5)and are statute barred. For the reasons the (sic) set out in this Determination the within appeal cannot succeed and the decision ofthe Equality Tribunal is affirmed."
From the content of the Determination, Mr Daniyan referred to the fact that the Labour Court and the Equality Officersaw no merit in the substantive claim ofMs Hurley, however, he submitted that this was not the case in the instant matter. He said that inthe instant case, whilethe Equality Tribunal may have found against the Complainant in respect of the victimisation (sic) that occurred in June 2010, he submitted that atthe least it was capable of being construed as victimisation.Therefore, he submitted that the claim is within time.
Conclusions of the CourtThe Court is satisfied that the Complainant referred a complaint to the Equality Tribunal on 1stOctober 2010 giving the last date of discrimination as 3rdJune 2010 and alleging other incidents of discrimination/harassment/victimisation occurring on
2ndJuly 2008, 31stMarch 2009 and 21stApril 2009.
There is no dispute that the alleged complaint of 3rdJune 2010 was submitted within the six-month time limit set out in Section 77(5) of the Acts, however, this complaint was not upheld by the Equality Officer and there is no appeal before the Court on that finding hence the Court must consider whether or not prior incidents of alleged discrimination can be investigated where those alleged incidents occurred outside the six-month time limit and there is no finding of discrimination within the six-month time period.
This issue was addressed in theHurleycase where the Court held that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of victimisation or discrimination within the time limit. There can be practical difficulties in applying that provision. There must be some reality in the claim that acts of victimisation actually occurred within the limitation period. Otherwise a Complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.
InHurleythe Court held as follows:-
“On the evidence adduced there is no basis whatsoever upon which the Court could conclude that the either of the incidents relied upon by the Complainant within the time limit were acts of victimisation. Accordingly, the Court must conclude that no acts capable of constituting victimisation occurred in the period of six-months ending on the date on which she presented her claim to the Equality Tribunal. Accordingly, even if the Complainant’s case were to be taken at its height in relation to all other incidents relied upon, they are outside the time limit prescribed by Section 77(5) and are statute barred.”
In this case, on the finding which was not appealed that there were no acts of discrimination within the six-month time limit, the other alleged acts of discrimination/harassment/victimisation were statute-barred at the time the complaint was presented.
Determination
For all of the reasons set out above as no acts capable of constituting a breach of the Acts occurred in the six-month period ending on the date on which the Complainant presented his claim to the Equality Tribunal, therefore, the Court finds that the Complainant’s complaints were presented outside the time limit prescribed by
Section 77(5) of the Acts and are statute-barred.
In these circumstances the Court finds that the Respondent’s appeal is allowed and the Decision of the Equality Officer is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th November, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.