ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001938

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 11/05/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Final correspondence in relation to a pay increase was received by the Commission from the respondent on the 2^nd.June 2016 and a replying submission was received from the claimant’s representative on the 29^th.June 2016

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

PRELIMINARY MATTER OF JURISDICTION.

The claimant’s complaint was received by the Commission on the 9^th.December 2015.In her complaint form the claimant referred to the 21^st.April 2015 as the most recent date of discrimination.While still in the employment of the respondent , the claimant had commenced a period of extended sick leave on the 21st.April 2015.

At the hearing the claimant contended that there was reasonable cause for granting an extension of time beyond the 6 month limit set down in the Act.The claimant submitted that “ although the most recent act of discrimination took place in April 2015 , I was not in a position to refer my complaint to Workplace Relations Commission within the initial 6 month time period allowed as I had submitted a formal complaint to my employer regarding my treatment at work , the matter was being investigated and this investigation only concluded in November 2015”.She referred to the following provision in the Employee Handbook –“In the event of the matter not being resolved internally , the matter shall be referred through the normal industrial relations procedures.The procedures referred to above shall include reference to a Rights Commissioner , the Labour Relations Commission, the Labour Court , the Employment Appeals Tribunal or Equality Officer as appropriate”.She submitted   “ I believe that this should be accepted as reasonable cause”.It was submitted by the claimant’s representative that the respondent’s reliance on the out of time provisions in the Act were mere technicalities and did not do the matter justice.It was submitted that the investigation undertaken by the respondent had rejected the claimant’s complaint and that the follow up meeting on the 30^th.October had done nothing to resolve the claimant’s issues.It was submitted that account should have been taken of the delay in the completion of the investigation commissioned by the respondent – it had been initiated in May but the entire process including the appeal did not conclude until October.

The respondent submitted that it could not be disputed that the most recent act of alleged discrimination was outside the time limit provided for in the Act.It was advanced that throughout the investigation process the claimant was represented and was fully aware of time limits.It was submitted that the outcome of the claimant’s appeal of the investigation was emailed to the claimant on the 1^st.October 2015.The claimant had walked out of the meeting that had been held on the 30^th.October to discuss the findings of the investigation/appeal.It was submitted that the claimant’s attendance at the meeting could in no way be deemed to have constituted a breach of the Act – the claimant had not been at work since the 21^st.April 2015.The chronology of the investigation was set out – an external party was commissioned to investigate the claimant’s complaints on the 23^rd.April 2015; the first meeting with the claimant was scheduled for the 28^th.April but was deferred at the claimant’s request to the 6^th.May 2015.The report issued on the 20^th.July 2015 and was appealed by the claimant . The appeal grounds were outlined in letter dated 30^th.July 2015.An external party was commissioned to conduct the appeal – in her report , the investigator states that the “ appeal hearing meeting was delayed due to the non availability of the claimant as she was unwell and the hearing took place on the 21^st.Sept 2015”.It was submitted that the outcome of the appeal was emailed to the claimant on the 1^st.October 2015.It was submitted by the respondent that the claimant had failed to advance any reasonable cause for the delay in the referral of her complaint to the WRC.

I have reviewed the evidence presented at the hearing and the chronology of events following the claimant’s complaint which was documented to the respondent on the 20thApril 2015.Having considered all of the evidence advanced by the parties , I find the claimant has failed to advance compelling reasons for the delay in making her complaint.

In the claimant’s letter of complaint to the employer , dated the 21.04.15 , she stated “ I know the right department to report this type of incident but before that I thought that I should bring it to your attention first.IN an interview during the investigation on the 10^th.June 2015 , the claimant stated “ They have left me with no option but to take this further as I have no courage or confidence to bring this with up” ( 2 named parties)” as they have lowered my self esteem as they have subjected me to continuous abusive treatment.   I cannot accept that the alleged delay on the respondent’s part in bringing the investigation and appeal to a conclusion , constituted reasonable cause for her delay in making the complaint – while I acknowledge that the ECJ in Levez c-326/96 held that national courts must extend the limitation period in circumstances of deliberate misinformation , I do not accept that there was any question of misinformation arising in this case.It was open to the claimant to refer her complaint while awaiting the outcome of the investigation and the appeal; it was open to her to refer her complaint after the appeal was notified to her in early October 2015 but she did not do so. In the circumstances I find that there was no reasonable cause for the delay in making the referral to the WRC and accordingly I deem the complaint to be out of time. Consequently I have no jurisdiction to investigate the complaint.

Dated:   12^th October 2016