Decision No: DEC-E/2014/016
Parties
A Complainant
-v-
A Community Enterprise Scheme
File No: EE/2011/724
Date of issue: 12 March, 2014
Headnotes: Employment Equality Acts 1998- 2011 – sections 77–timelimits- jurisdiction- complaint properly before Tribunal
1. DISPUTE
This dispute involves a claim by a complainant that he was discriminated against by the respondent on grounds of disability, in terms of section 6(2) of the Employment Equality Acts 1998- 2011 and contrary to section 8 of those Acts in relation access to employment on a Community Enterprise Scheme (hereafter referred to as a “CE Scheme”) administered by the respondent. The complainant states that he suffers from Bipolar Disorder and given the sensitivities surrounding the condition I have decided, in accordance with the standard practice of the Tribunal in such circumstances, to withhold the identities of the parties to the complaint.
2. BACKGROUND
2.1 The complainant states that he was offered a position as a Sports Hall Assistant with the respondent under a CE Scheme in January, 2010. The position was offered on the basis that he would successfully complete the necessary Garda Vetting requirements and he adds that he completed the necessary documentation. The complainant contends that the respondent found out about issues involving his participation on a previous CE Scheme (in terms of his ability to perform the functions attached to that placement- which he disputes) which he believes it attributed to his disability. He further contends that the respondent used this information to refuse to appoint him to the position in the instant case and used the issue of Garda clearance as an excuse in that regard. He submits that this amounts to discrimination of him on grounds of disability contrary to the Acts. The respondent rejects the complainant’s assertions in their entirety.
2.2 The complainant referred a complaint to the Equality Tribunal on 17 October, 2011. 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 15 January, 2014 - the date the complaint was delegated to me. Submissions were received and exchanged between the parties and a Hearing on the complaint took place on 7 March, 2014. At the outset of the Hearing it became apparent to me, having clarified a number of initial points with the parties, that a question arose as to whether or not the complaint had been referred to the Tribunal in accordance with the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2011. I proposed to the parties that I would take evidence on the timelimit issue in the first instance and adjourn to consider the matter. If I found that the complaint was properly before me for investigation, in terms of a finding that the complainant has complied with the statutory timelimits, I would reconvene the Hearing to take evidence on the substantive aspects of the complaint. If however, I found that the complaint was not properly before me for investigation, I would issue a Decision in that regard which could be appealed in accordance with the statute. Both parties agreed to the proposed approach.
3. SUMMARY OF COMPLAINANT’S CASE
The complainant states that he attended for interview at the respondent on 8 January, 2010 in respect of a position as Sports Hall Assistant at the respondent’s premises under a CE Scheme and was offered the position on 15 January, 2010. He accepts that the offer was contingent on him successfully completing the necessary Garda Vetting requirement. He adds that he completed the necessary documentation and that this documentation was subsequently returned to him seeking additional information (as the original documentation was incomplete) and he furnished the information to the best of his ability, given that the nature of the information sought required details going back decades. The complainant states that he subsequently made a number of attempts to inquire of Ms. A, (the Supervisor of the CE Scheme in the respondent) as regards the status of the Garda Vetting application and she never returned his calls. He adds that this prompted him to contact an official in FÁS (Ms. B) in the matter and she informed him (by e-mail dated 19 March, 2010) that not all CE Schemes required Garda clearance and could offer no further assistance. The complainant adds that he subsequently had contact with and wrote to, other officials in FÁS which concluded on 6 September, 2010. In the course of the Hearing the complainant stated that the last contact he had with Ms. A was sometime before 19 March, 2010 – the date he e-mailed Ms. B. He was unable to say whether or not he had contact with Ms. A on 9 April, 2010 (as asserted by her). In addition, he was unable to say what occurred on (i) 4 October, 2010 – the date of the first alleged occurrence of discrimination as indicated on his referral form to the Tribunal (Form EE1) or (ii) 11 September, 2011 – the date of the most recent alleged occurrence of discrimination.
4. SUMMARY OF RESPONDENT’S CASE
The respondent rejects the complainant's assertions in their entirety. It accepts that it offered the complainant the position of Sports Hall Assistant at its premises (under a CE Scheme) by letter dated 15 January, 2010. It adds that this offer of employment was contingent on the complainant successfully completing the necessary Garda Vetting requirements; that this was clearly stated in the letter of offer and that the point was repeated on several occasions subsequently. It states that the complainant was unsure about certain details included on the relevant application form and consequently the documentation contained gaps. The respondent (Ms. A) states that the complainant’s original documentation was returned to her as it was incomplete and she forwarded it to the complainant for completion on 9 April, 2010. She adds that there were still gaps when the complainant returned it to her and she offered some explanation on it for same before she returned it to the appropriate authorities for processing (on 27 April, 2010), in the hope the matter could be concluded. She further states that she heard nothing further in the matter after that date. She adds moreover, that she had no contact with the complainant after this and was unaware that he had any contact with FÁS in the matter.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not this complaint was referred to this Tribunal in accordance with the timelimits prescribed at section 77(5) of the Employment Equality Acts, 1998-2008. In reaching my decision I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal as well as evidence advanced at the Hearing.
5.2 Section 77(5) of the Acts provides as follows: -
(a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director….may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted reference to such period not exceeding 12 months as specified in the direction…..”.
5.3 This subsection requires a complainant, in the first instance, to refer a complaint to this Tribunal within six months of the alleged act of unlawful treatment, or if the alleged treatment forms a series of individual connected acts, the most recent of those. In the instant case the complainant referred his complaint to the Tribunal on 17 October, 2011. This means that the most recent alleged act of unlawful treatment would necessarily have had to occur on, or after, 18 April, 2011. In the event the timelimit was extended to its maximum in terms of subsection 5(b), the most recent alleged act of unlawful treatment would necessarily have had to occur on, or after, 18 October, 2010. Having carefully considered the evidence adduced by the parties I am satisfied that the last contact between them was 27 April, 2010 and I find therefore that had the respondent discriminated against the complainant (and no finding is made on that question) that the last possible date that any such treatment might have occurred was 27 April, 2010. This predates the maximum period permitted by section 77(5)(b) of the Acts (18 October, 2010) by almost six months. Consequently, I find that the complaint was referred to the Tribunal outside of the timelimits prescribed by section 77(5) of the Acts and I have no jurisdiction to investigate the substantive aspects of the complaint.
6. DECISION OF THE EQUALITY OFFICER
I have completed my investigation of this complaint and make the following Decision in accordance with section 79(6) of the Employment Equality Acts, 1998-2011. I find that the complaint was referred to the Tribunal outside of the timelimits prescribed by section 77(5) of the Acts and I have no jurisdiction to investigate the substantive aspects of the complaint.
_________________________
Vivian Jackson
Equality Officer
12 March, 2014
DEC-E2014-016