EDA1614

• 1.This is an appeal by Tariro Mutyandasvika (the Complainant) against a decision of the Equality Tribunal in her claim of discrimination on the grounds of race and a further complaint of victimisaiton under the Employment Equality Acts.

  2.When the matter came on for hearing before the Equality Officer the Respondent, by way of a preliminary point, argued that the complaint was out of time and statute barred.

  3.In deciding that point the Equality Officer decided as follows

  • 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.

    3.4 Decision

    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.

5. The Complainant submits that she suffered an accident at work on 21 July 2011. She was subsequently unfit for work and on sick leave from her employment On 9 November 2012 she was certified medically unfit for manual handling duties but fit for work that did not involve such duties. She was advised on 30 November 2012 by her employer that there was no such position available for her. She submits that this treatment of her by her employer amounts to discrimination within the meaning of the Act. She submits that as the complaint was submitted to the Tribunal on 17 December 2012, i.e. within one month of the most recent alleged act of discrimination, the Equality Officer erred in deciding that the complaint was statute barred.

6. The Respondent submits that the Equality Officer was correct when she stated that there “was no act/s of discrimination after the 21^stJuly, 2011 and that the content of the phone call on the 30^thNovember, 2011 was not the “most recent occurrence” and that accordingly the complainant’s claim is “out of time and statute barred.” It submits that the complaint form submitted by the Complainant made no reference to the alleged act of discrimination on which she now seeks to rely. It submits that, based on the information before her the Equality Officer had correctly decided the matter and requests the Court to uphold the decision.

Findings of the Court

7. The Court finds that the gravamen of the Complainant’s case is that the most recent alleged act of discrimination on the Respondent’s part took place on the 30^thNovember 2012 and that she submitted a complaint to the Tribunal on 17 December 2012 some few weeks later. On that basis the Court finds that the complaint is in time and is not statute barred. In so deciding the Court has not considered and has made no decision on the merits of the complaint which is properly a matter for investigation and decision by the Workplace Relations Commission.

Determination

8. The complaint in this case was made to the Equality Tribunal within the statutory time limit set out in the Act. The matter is referred back to the Tribunal, now the Workplace Relations Commission, for investigation and decision under the Act.

9. The appeal is allowed. The decision of the Equality Officer is set aside.

10. The Court so decides.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
27 June 2016Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.