EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2016-111
PARTIES
An individual
AND
A Voluntary Organisation
(Represented by IBEC)
File reference: et-154621-ee-15, et-154627-ee-15 & et-154633-ee-15
Date of issue: 29th July 2016
1 DISPUTE
1.1 This dispute concerns three claims by an individual that he was discriminated against by the respondent organisation on the grounds of his age contrary to Section 6 of the Employment Equality Acts (1998 - 2012) contrary to Section 8 of the Acts, in relation to his access to employment, conditions of employment, Harassment and Victimisation.
1.2 The claimant referred three claims to the Director of the Equality Tribunal on 9 and 10 March 2015 under the Employment Equality Acts. On 20 January 2016, in accordance with his powers under Section 25 of the Acts, the Director General of the Workplace Relations Commission delegated the cases to me, Ray Flaherty, an Adjudication Officer/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 10 February 2016.
1.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 83 (3) of the Workplace Relations Act 2015.
2 CLAIMANTS' SUBMISSION
2.1 The complainant submits that his employer treated him unlawfully by discriminating against him on the grounds of his age. In this regard the complaint states that the discriminatory treatment took place in relation to (a) the provision of training, (b) his conditions of employment, (c) harassment and (d) victimisation.
2.2 The complainant submits that the respondent failed, on induction, to provide him with timely mandatory training in breach of its own policies. The complainant contends that mandatory training he should have received on commencement of his employment did not occur. In addition, the complainant submits that ongoing refresher training did not occur despite many requests. The complainant further contends that younger recruits didn't experience the same difficulties as he did in this regard.
2.3 The complainant submits that during his continuous employment, there were eight periods ranging from 1 to 7 months in which he did not receive any contract of employment. In addition, the complainant submits that there were also breaches of fixed term legislation in relation to a number of short term contracts he received between January 2011 and June 2012. He contends that these contained invalid clauses and a lack of genuine objective reason.
2.4 The complainant further submits that there were numerous infringements against him by management in relation to policies on induction, recruitment, probation and challenging behaviour etc. According to the complainant these policies were applied in a discriminatory manner and were not applied to younger work colleagues within the service.
2.5 The complainant submits that management treated him differently, than his younger colleagues, on a number of team issues. In this regard, the complainant's submission contains reference to a number of incidents that occurred during 2009 and 2010. These incidents covered, inter alia, matters such as the allocation of excessive workloads, weekend working and annual leave.
2.6 With regard to the allegations of victimisation, the complainant submits that on a number of occasions he was victimised in a manner which was not experienced by any of his younger colleagues.
2.7 The complainant submits that the chain of events outlined above were all linked and were part of a campaign designed to humiliate him. The complainant submits that this behaviour still continues. .
2.8 By way of letter dated 3 November 2015, the respondent raised a preliminary issue in relation to time limits. The respondent submits that all the alleged discriminatory events referred to in the claim date back to 2009/2010/2011. According to the respondent, as the complainant's complaints were referred to the Equality Tribunal between 5 and 10 March 2015, there are clearly outside the six months time limit for submission of such cases. The respondent further submits that the complaints are also outside the further extension of six months which may be applied in certain circumstances for reasonable cause.
2.9 In his rebuttal of the respondent's contention that the complaints were out of time, the complainant made a number of responses. Firstly, the complainant referred to the parallels and similarities of his case with that of the decision of the Equality Tribunal in the case of Mary Dempsey v NUIG [DEC-E2014-038]. In this regard the complainant made particular reference to the Tribunal's finding that a linked chain of events was sufficient to cause the time limits to be set aside.
2.10 The complainant also submits that the Equality Tribunal guidelines to complainants stated explicitly that all internal mechanisms need to be exhausted before a case can be taken externally to arbitration. The complainant submits that this direction led him to believe the time limit should only begin when the internal mechanisms that have been vigorously pursued failed to provide a solution. In this regard, the complainant submits that since internal mechanisms were being pursued throughout the period between 2010 and 2012, the time limit for his equality claim should, therefore, only begin from the start of 2013.
2.11 The complainant submits that, at his Labour Court hearing in April 2014, the employee representative on the Court queried as to whether he (the complainant) had considered taking his cases against the respondent to the Equality Tribunal. According to the complainant, this comment, in conjunction with the Equality Tribunal decision in the Mary Dempsey v NUIG [DEC-E2014-038] case, which issued a month later, renewed his hope and gave him the confidence to take his complaints to the Equality Tribunal.
3 RESPONDENT'S SUBMISSION
3.1 As stated in 2.8 above, the respondent's response to the claimant's complaint of discrimination raised the preliminary issue of time limits. On the basis the respondent contended that the substantive issues of the case should not be examined pending adjudication on the preliminary claim in relation to time limits. At the hearing the respondent's response was restricted to comments in relation to the time limit issue.
3.2 The respondent submits that the complainant has already raised all the complaints under other legislation and, having failed in those applications, is now trying to raise the matters afresh under the equality legislation.
3.3 The respondent submits that the case of Mary Dempsey v NUIG [DEC-E2014-038] has no relevance to this case.
3.4 With regard to the complainant's contention that his referral of his complaints to the Equality Tribunal was influenced by comments made at his Labour Court hearing in April 2014, the respondent submits that this clearly shows the complainant had no intention, prior to that point, of raising his issues as a complaint under the equality legislation. The respondent further submits, in this regard, that the complainant did not submit a complaint to the Equality Tribunal for a further year.
3.5 The respondent rejects the claimant's contention that his current claim represents "a series of connected events". In this regard, the respondent denies the complainant's contention that the alleged act(s) of discrimination is/are ongoing. The respondent submits that the assertion that the alleged discrimination is repeated is not consistent with the facts of the case.
3.6 The respondent submits that there are no repeated acts of discrimination. In support of this the respondent claims that the complainant did not get the promotion he wanted, the second bullying investigation he wished for or the contract of employment he desired. The respondent contends that what occurred thereafter is merely a consequence of those decisions.
3.7 The respondent submits that all of the incidents at the core of the complainant's claim occurred 5/6 years ago. Consequently, the respondent submits that if a discriminatory act occurred, then the time limit ran from that date and not from any later date. The respondent bases this on the contention that while an act may have consequences, such consequences cannot be considered as new acts of discrimination.
3.8 In conclusion, the respondent submitted that the alleged discrimination comprises a single act and is not ongoing or repeated. On that basis the respondent requested that it be found that no jurisdiction exists for this case to be heard, on the basis that is clearly statute barred and not properly before the Tribunal.
4 FINDINGS & CONCLUSIONS OF THE ADJUDICATION OFFICER
4.1 The issue before me for decision is the preliminary issue, whether or not, the complainant's claims are properly before me with regard to time limits and that I have jurisdiction to hear the cases in this regard.
4.2 Section 77 (5) (a) and (b) of the Employment Equality Acts, 1998 – 2012 states:
“(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 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 a reference to such period not exceeding 12 months as is specified in the direction, and where such a direction is given, this Part shall have effect accordingly.
The above sections of the Employment Equality Acts clearly set out the requirements in relation to the time limit in operation for submission of complaints of discrimination. The complainant's complaints pertaining to the alleged discrimination were lodged with the Equality Tribunal in March 2015. Therefore, it falls to me to consider the submissions made by the complainant and the respondent and determine if the complaints have been properly lodged in compliance with Section 77 (5) (a) and (b) of the Acts.
4.3 In a clarification document dated 30 April 2015, the complainant confirmed that his complaints of discrimination were being made on the grounds of age. In this document the complainant proceeded to detail the alleged discriminatory acts on which the complaints are based. These alleged incidents are detailed to have occurred over a period commencing in December 2009, with the latest incident referred to being dated as June 2012.
4.4 On the basis of the dates set out in the complainant's complaints clarification of 30 April 2015, it is clear that all three of the complaints are outside the time provisions of both (a) and (b) of Section 77 (5). Consequently, based on these facts, I am fully satisfied that the requirements of Section 77 (5) of the Acts have not been complied with in relation to timely submission of the complaint.
5. DECISION
I have investigated the above preliminary issue and make the decision in accordance with Section 79 of the Employment Equality Acts and section 41 (5) (a) (iii) of the Workplace Relations Act 2015 that the complainant has failed to meet the required time limit in relation to the submission of his complaints and, consequently, I have no jurisdiction to hear the substantive element of the complaints.
____________________
Ray Flaherty
Adjudication Officer/Equality Officer
29th July 2016