The Equality Tribunal
EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2015-076
PARTIES
TARIRO MUTYANDASVIKA
(represented by Derek Stewart, Solicitor)
AND
CONGREGATION OF DOMINICAN SISTERS OF ROSARY AND ST. CATHERINE OF SIENA T/A SANTA SABINA HOUSE
(represented by Ger Connolly, Solicitor)
File reference: EE/2012/637
Date of issue:
HEADNOTES: Employment Equality Acts, Section 74, Victimization, Section 6 Discrimination – race.
1 DISPUTE
1.1 This dispute concerns a claim by Tariro Mutyandasvika that she was discriminated against by the respondent on the grounds of race contrary to section 6 (2)(h) of the Employment Equality Acts.
1.2 The complainant has a claim for Victimization pursuant to Section 74 of the Act also.
1.3 The complainant referred her claim to the Director of the Equality Tribunal on 17th December, 2012 under the Employment Equality Acts. On 16th July, 2015, in accordance with his powers under section 75 of the Acts, the Director delegated the case to me, Niamh O’ Carroll Kelly, 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 which date my investigation commenced. Submissions were received from both sides and in accordance with Section 79(1) of the Acts and as part of my investigation I proceeded to a hearing on 22nd July, 2015.
2 PRELIMINARY ISSUE.
2.1 The Respondent submits that the complainant’s claim is statute barred.
2.2 Section 77(5)(a) states “ 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” This can be extended to 12 months where reasonable cause for the delay is shown.
2.3 The Respondent submits that the complainant commenced a period of sick leave following an accident at work and has not attended for work since the 21st July, 2011. She remained certified unfit to work until October, 2013 when she was certified fit to return to work “ undertaking very light duties in a health care setting”. The complainant then attended an Occupational Health Physician in order to assess her fitness to return to her role as a Care Assistant. On the 9th November, 2012 the findings of the Occupational Health Assistant were that the complainant was “permanently unfit for manual handling duties”. The complainant was informed on that 28th November, 2012 that no position which would facilitate her return to work was available with the respondent at that time. That remains the case.
2.4 The Complainant lodged her claim on the 17th December, 2013.
2.5 The complainant states that she made a call to the respondent on the 30th November, 2012 requesting information on her return to work date. She was informed by the respondent, as she was two days previously, that they did not have work available for her at that time. She was asked not to come to work and was not to enter the premises.
2.6 The complainant felt that the respondent was not making any effort to accommodate her because of her skin colour. She stated that in the past other individual’s specific needs were accommodated and that was because of their skin colour.
2.7 I note that the complainant does not have a claim for discrimination on the grounds of disability / reasonable accommodation.
2.8 The complainant submits that the content of the phone call on the 30th November, 2012 is the most recent occurrence of the act of discrimination.
3 FINDINGS & CONCLUSIONS OF THE EQUALITY OFFICER ON THE PRELIMINARY ISSUE.
3.1 I have to decide if the complainant’s complaint was lodged within the statutory time period provided by Section 75 (5) (a) or (b).
3.2 It is clear from the evidence that from the 21st July 2011 to the 28th November, 2012 there was little or no communication between the parties. The complainant was on certified sick leave. The only communication between the parties was specifically related to her medical assessments and the findings thereof. The respondent’s communications with the complainant on the 28th November and the 30th November, 2012 were merely a reiteration of the Occupational Health Physician’s findings.
3.3 I find that there was no act/s of discrimination after the 21st July, 2011 and that the content of the phone call on the 30th November, 2011 was not the “most recent occurrence”. This is clearly outside the 12 months time limit within which a complaint must be referred under the Employment Equality Acts.
4 DECISION
4.1 I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that the complainant’s claim is out of time and statute barred.
____________________
Niamh O’Carroll Kelly
Equality Officer
Date: ___________________