EMPLOYMENT EQUALITY ACTS 1998-2015
Preliminary Decision DEC – E2016 – 130
PARTIES
Dr Douglas Sorenson
and
Teagasc Agriculture and Food Development Authority
(represented by Claire Bruton, B.L., instructed by Hayes Solicitors)
File Reference: et-149914-ee-14
Date of Issue: 19th September 2016
Keywords: Preliminary decision pursuant to S. 79(3A) of the Employment Equality Acts – discriminatory dismissal – expiry as per contracted terms of a fixed term contract not a dismissal within the meaning of the Acts – access to employment – standing to bring a complaint where no job application is extant – direct and indirect discrimination – issues of res judicata.
1. Claim
1.1 The case concerns a claim by Dr Douglas Sorenson that Teagasc discriminated against him on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2011, in terms of access to employment and discriminatory dismissal.
1.2 The complainant referred a complaint under the Employment Equality Acts 1998 to 2011 to the Director of the Equality Tribunal on 24 October 2014. A submission was received from the complainant on 24 March 2016. No submission on the substantive case was received from the respondent, due to its application for a preliminary hearing and decision. On 24 May 2016, in accordance with his powers under S. 75 of the Acts, the Director General delegated the case to me, Stephen Bonnlander, an Equality/Adjudication Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part VII of the Acts. On this date my investigation commenced. On 23 August 2016, the respondent sent a submission by email, in which counsel for the respondent raised serious questions on issues of res judicata and the standing of the complainant to bring a complaint with respect to access to employment, and made an application to have these issues dealt with by way of a preliminary hearing. I considered that these concerns were substantial enough to warrant a preliminary hearing and hence acceded to the respondent’s application on 1 September 2016. Accordingly, I held a preliminary hearing on the questions raised pursuant to the provisions of S. 79(3A) of the Acts, on 15 September 2016. Both parties were in attendance. Submissions were received prior to this hearing, from the respondent on 23 August 2016 and from the complainant on 13 September 2016.
2. Summary of the Respondent’s Written Submission
2.1 The respondent submits that the complainant’s complaint should be struck out by reason of being frivolous and vexatious and/or amounting to an abuse of process. It states that it employed the complainant on a fixed-term contract following an open competition held by the Public Appointments Service. This contract expired on 30 April 2014, and the complainant did not apply for any further employment with the respondent. Accordingly, the respondent submits that the complainant lacks legal standing in his complaint regarding access to employment.
2.2 The respondent furthermore submits that the complainant litigated the exact same facts in the context of a complaint pursuant Sections 9 and 13 of the Protection of Employees (Fixed-Term Work) Act 2003. The complainant was unsuccessful in his initial complaint and appealed the outcome to the Labour Court, where the appeal was heard by the division headed by Deputy Chairman Haugh. Mr Haugh upheld the original findings of the Rights Commissioner. The respondent states that at a case management meeting convened by Mr Haugh on 17 February 2016, Mr Haugh suggested to the complainant that he make an adjournment application, to await the outcome of the within complaint. According to the respondent, the complainant declined to do so, and the appeal proceeded. The respondent submits that therefore, the complainant should be estopped from resiling from this choice. It submits that this was a relevant consideration to the High Court in striking out parallel personal injury proceedings in Culkin v. Sligo County Council [2015] IEHC 46.
2.3 The respondent then proceeds to set out the findings of the Superior Courts in Re Vantive Holdings [2010] 2 I.R. 118 at pp 124-125, Morrissey v. Irish Bank Resolution Corporation Ltd [2015 3 JIC 1104, Woodhouse and Consignia Plc [2002] and Cunningham v. Intel Ireland [2013], IEHC 207, a complaint under the Employment Equality Acts which originated in the Equality Tribunal. All of these cases consider the applicability of the rule Henderson v. Henderson, and its objective to promote finality in proceedings, both for the private rights of litigants and in terms of the public policy objective of ensuring finality in litigation and avoid wasting court time.
2.4 In particular, the respondent cites Hedigan J in Cunningham v. Intel:
By confining her complaints in one set of proceedings the statutory and common law requirements do not in any way limits the Plaintiff’s right to a remedy for those complaints. The Labour had and still has at its disposal ample jurisdiction to do so. In particular, as a lay litigant, the Plaintiff is far better off having all of her complaints dealt with in one set of proceedings.
2.5 It is the respondent’s contention that as a matter of public policy, it should not be put to the expense of having to defend the same issues twice and that the findings of the Superior Courts on the case of Henderson v. Henderson, elaborated in the cases cited above, should avail it.
3. Summary of the Complainant’s Written Submission
3.1 The complainant submits that S. 101 of the Employment Equality Acts only prevents him from obtaining relief under the Protection of Employees (Fixed-Term Work) Act 2003 and the Employment Equality Acts. Hence he argues that since his complaint under the Protection of Employees (Fixed-Term Work) Act 2003 was unsuccessful, he is not estopped from pursuing his complaint under the Employment Equality Acts. He further states that during the Labour Court case conference convened by Mr Haugh, it was not mentioned to him that pursuing his complaint under the Protection of Employees (Fixed-Term Work) Act 2003 would prevent him from also pursuing his equality complaint. He therefore states that in his opinion, there is no basis in fact or law to require him to make such an election.
3.2 With regard to the fact that he already litigated his complaint of discrimination in access to employment as being a penalisation of him contrary to S. 13 of the Protection of Employees (Fixed-Term Work) Act 2003, the complainant states that the complaints involve different issues and different facts and hence the doctrine of res judicata ought to have no application in the instant case. The complainant then goes on to cite a number of Equality Officer findings which support this point.
3.3 In support of his contention that he has standing to bring a complaint of discrimination in access to employment, the complainant further cites the two Equality Tribunal decision McCall v. Area Development Management, DEC-S2007-058, a decision under the Equal Status Acts which dealt with the so-called Taxi Hardship Scheme, and DEC-E2007-020, Ruddy v. An Post, an employment equality case in which the respondent operated an express age limit with regard to a particular employment opportunity which was widely publicised in the organisation and which discouraged the complainant, who was older than this limit, to apply. I will consider Ruddy v. An Post in greater detail in my conclusions. The complainant bases his contention that he has standing on these cases.
4. Conclusions of the Equality/Adjudication Officer
4.1 The preliminary issues for decision in this case are whether the complainant’s complaint of discriminatory dismissal even engages the provisions of the Employment Equality Acts or whether it might be misconceived; whether, if it is not misconceived, it is res judicata because the complainant properly brought, and appealed, a complaint which the respondent asserts is identical to the within complaint, under the Protection of Employees (Fixed-Term Work) Act 2003; whether his complaint of discrimination in access to employment is also res judicata because he litigated the same facts in the aforementioned proceedings as an act of penalisation; and whether he has standing to bring a complaint of discrimination in access to employment at all.
4.2 In coming to my decision, I have considered all oral and written evidence presented to me by the parties.
4.3 With regard to the respondent’s application to find that the within complaint is res judicata, I reserved my position on this matter. Whilst I recognise that the respondent has raised important arguments as to why the case should be considered res judicata, I am also mindful that the complainant is unrepresented and that a finding of res judicata could, at least in parts, amount to a refusal of access to justice based on an earlier misguided argument – specifically, the complainant’s unsuccessful contention that the respondent’s advertisement of the postdoctoral fellowships amounted to penalisation of him pursuant to S. 13 of the Protection of Employees (Fixed-Term Work) Act 2003. Instead, in this preliminary decision, I focus on whether the various parts of the complaint were properly brought and hence whether the Commission has jurisdiction to investigate them.
Jurisdiction: Discriminatory Dismissal Complaint
4.4 It is very clear from documents submitted by the complainant in his main submission, that his fixed-term contract of employment with the respondent expired in line with its contractual terms, and the complainant was notified of this by a letter from the respondent’s HR Staff Services Officer dated 14 April 2014. However, such an expiry of a fixed-term contract, in line with terms clearly set out in the contract and as previously agreed between the parties, is not a dismissal within the meaning of the Employment Equality Acts and hence cannot ground a complaint under these Acts.
4.5 At the preliminary hearing, the complainant raised the point that the Employment Equality Acts were amended by S. 83 of the Workplace Relations Act 2015, to give “dismissal” the same meaning as in the Unfair Dismissals Act, 1977, and that this definition does indeed include, in S. 1(c):
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;
4.6 Counsel for the respondent pointed out that this amendment post-dates the complainant’s complaint by about a year and hence does not apply in the within case and that therefore I have no jurisdiction, which is certainly true and which I accept.
4.7 Prior to the amendment of the Employment Equality Acts in 2015, the only situation in which expiry of a fixed-term contract could be litigated is set out in the European Court of Justice case Maria Luisa Jiménez Melgar v. Ayuntamiento de Los Barrios [C-438/99], which was issued by the ECJ on 4 October 2001, and which concerns the pregnancy-related dismissal of a female fixed-term worker. The complainant had been employed by a local authority on a series of roll-over fixed-term contracts as a home help for the elderly. When the complainant informed her employer of her pregnancy, her contract was not renewed. Notwithstanding the fact that the employer invited the complainant to a meeting a few days afterwards with a view of signing a new fixed-term contract, the Court held that “where non-renewal of a fixed-term contract is motivated by the worker’s state of pregnancy, it constitutes direct discrimination on grounds of sex.”
4.8 This finding must be read in the context of the very strong employment protections pregnant women enjoy, and which the CJEU has elaborated on in a long line of cases. For obvious reasons, it does not apply to the complainant. It is not wholly irrelevant, however, to note here Deputy Chairman Haugh’s findings in his decision of the complainant’s appeal under the Protection of Employees (Fixed-Term Work) Act 2003 that the complainant was not even promised another contract of employment by the respondent, which might then have been revoked for discriminatory reasons. In other words the complainant does not even meet the first part of what might be called the Jimenez-Melgar test.
4.9 To briefly summarise the law for misconceived jurisdiction, a claim is misconceived when it is incorrectly based in law. In Keane v. Minister for Justice [1994 3IR 347], Lynch J found that the Minister had no statutory power to relieve Leitrim County Council of its duty to provide courthouse accommodation in Carrick-on-Shannon and that her direction to the council was therefore “wholly misconceived and invalid”.
4.10 In light of the fact referenced above, that the change in definition of “dismissal” in the Acts was not effective when the within complaint was brought, I find that since the expiry of a fixed-term contract in line with the terms set out in that contract is not capable of being a dismissal within the meaning of the Acts prior to amendment, I am satisfied that this part of the complainant’s case is in itself misconceived within the meaning of S. 77A of the Employment Equality Acts, that the Commission has no jurisdiction to investigate the matter. I am satisfied that this would be the case even if the complainant had failed to litigate the matter under the correct statute, which, I am satisfied, is the Protection of Employees (Fixed-Term Work) Act 2003. As things stand, he did so, including availing of his right to an appeal.
Jurisdiction: Complaint of Discrimination in Access to Employment
4.11 Turning to the complainant’s complaint that he was discriminated against in access to employment, I first note that the complainant brought complaints of both direct and indirect discrimination in this regard. The question is whether he has legal standing to do so, given that he did not make any application for the positions in question.
4.12 To deal with the complainant’s complaint of direct discrimination first, S. 6(1) of the Acts does allow complainants in extraordinary circumstances to cite a hypothetical comparator, that is, a person who would have been treated more favourably under comparable circumstances than they themselves. It states that
[D]iscrimination shall be taken to occur where –
A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) […]
4.13 However, by first not participating in a job competition and afterwards claiming discrimination, a complainant would effectively turn themselves into a hypothetical job applicant, rather than just having a hypothetical comparator. Furthermore, by having no application which could be unsuccessful or not, it is impossible to establish actual less favourable treatment, that is, a complainant being unsuccessful in competing for the job. These are hypothetical scenarios which the law in general, and certainly the Employment Equality Acts, do not envisage. They are impossible for a respondent party to rebut, and impossible for an adjudication officer to come to a valid conclusion and legally binding decision about. For all of these reasons, a complainant cannot be allowed legal standing to bring complaints of direct discrimination in access to employment without having submitted a job application for the position in question, and I am satisfied that the complainant has no such standing with regard to this aspect of his complaint, which is direct discrimination in access to employment.
4.14 The complainant’s case for indirect discrimination in access to employment is slightly more complicated. What if the wording of an advertisement or conditions attached to a position discourages some persons from applying, because they believe the wording or the conditions to be indirectly discriminatory, that is, putting them at a particular disadvantage for success?
4.15 For the sake of completeness, I should note here that the amendment of the Employment Equality Acts by S. 5(c) of the Equality (Miscellaneous Provisions) Act 2015, does now allow individual complainants to litigate against discriminatory job advertisements which contravene S. 10(1) of the Acts. This amendment, too, postdates the within complaint, and is therefore not applicable to this decision. Accordingly, the relevant law to apply is the exception to the general rule that to have standing in a complaint regarding access to employment, a job application must be extant, which was set out in the Equality Tribunal decision DEC-E2007-020, Ruddy v. An Post. This decision was the subject to much argument between the sides at the preliminary hearing.
4.16 To briefly summarise the facts, the case of Ruddy v. An Post was about a scheme operated by the respondent to that case, in which employees under 60 years of age could opt to become self-employed drivers for a parcel service which the respondent proposed to outsource from its operations. The package was very attractive financially, and as per the calculations of the Equality Officer in his decision, which are based on figures provided in evidence, left someone at age 59 who availed of it significantly better off than someone over 60, who got a severance package. The age limit of 60 was widely publicised by the respondent organisation. After making enquiries with his union representative and HR, the complainant decided it would be pointless to apply to become a self-employed driver, since he was over 60 years of age.
4.17 Specifically on the issue of standing, the Equality Officer noted that
I am satisfied that it was perfectly clear to the complainant that an upper age limit applied and it was reasonable for him to assume he could not apply at that time. […] I am satisfied that had the complainant submitted an application it would have been rejected by the respondent on the basis that he was over 60 years of age. In the circumstances I consider it unreasonable to expect the complainant to have made a formal application for the scheme to maintain a locus standi.
4.18 When I asked the parties for their views on the case, counsel for the respondent pointed out that if no job application was required, anyone could simply bring a case for discrimination in access to employment. The complainant challenged this by asking how many people had brought cases following the Ruddy case, and I answered this question by saying that there were not many. And indeed, the change in the law set out above may change this situation in the future to some extent. By way of further argument, counsel pointed out that the complainant did not make any preliminary enquiries before deciding not to apply, which the complainant countered by saying that he knew from internal meetings that he would not be eligible.
4.19 The important point, in my view, is that in Ruddy a specific age limit is expressly stated. This is a bit like those “No Irish Need Apply” signs in the shop windows of American cities in the 19th century. In contrast, in the impugned job advertisements for the postdoctoral fellowships, which were advertised in open competition through the Public Appointments Service, no age limit was given. While it is the complainant’s contention that “early career scientist” means a young person, this need not be the case at all – for example, someone could go back into higher education later in life to obtain a PhD – and the HR Manager of the respondent confirmed in response to a direct question that the respondent did not operate any kind of age limit on the candidates for the positions. And indeed the complainant’s own awareness of his lack of eligibility for the positions does not stem from him being any particular age, but from the fact that in his own assessment, he had too much work experience post-PhD.
4.20 I find this point to be of major importance. Instead of a clearly identifiable discriminatory condition, what is at issue here is an employment condition regarding a specific qualification and a specific amount of experience which can, and indeed is obtained, by people of a wide variety of ages. Hence people within a wide age band, and certainly not just young people as alleged by the complainant, may have “up to three years’ experience post-PhD”. As such, it is materially different from the situation in Ruddy. The complainant’s prima facie ineligibility on the ground of age is lacking here, and hence I am satisfied that the exemption does not apply. The exemption states that in situation where it is clear, on the basis of a protected ground, that a person would not be successful in applying for a position, no application is needed. This is far from obvious in the within case, and hence the complainant’s complaint is entirely too hypothetical to be properly adjudicated and suffers from the same defects as his complaint of direct discrimination set out above.
4.21 Furthermore, the scheme in Ruddy was an internal scheme which was internally publicised, both electronically and by way of a notice on a staff noticeboard. It was not a job advertisement for the general public as is the advertisement in the within case. In Ruddy, the respondent sought to invoke the exemptions for advertisements from personal litigation pursuant to S. 10 of the Acts, but the Equality Officer, for cogent reasons, rejected this argument. On the other hand, in this case, I am satisfied that it is indeed the respondent’s public job advertisement within the meaning of S. 10 of the Acts which the complainant seeks to impugn. Given that the complaint was brought before the change in the law, the provision of S. 85(1)(d) of the Acts as they were prior to amendment, and which reserves the right to prosecute potentially discriminatory advertisements to the Irish Human Rights and Equality Commission, avails the respondent.
4.22 For both of these reasons, I am satisfied that the complainant does not have legal standing to bring a complaint of indirect discrimination in access to employment, either. I therefore find that Dr Sorenson’s complaint of discrimination on the ground of age, in terms of access to employment, is also misconceived and that I have no jurisdiction to investigate it.
5. Decision
5.1 This decision is issued by me following the establishment of the Workplace Relations Commission on 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act 2015.
5.2 Based on all of the foregoing, I find, pursuant to S. 79(3A) of the Employment Equality Acts 1998-2015, that
The complainant’s case for discriminatory dismissal is misconceived within the meaning of S. 77A of the Employment Equality Acts 1998-2011, because the expiry of a fixed-term work contract in line with its agreed terms is not a dismissal within the meaning of the Acts prior to their amendment by the Workplace Relations Act 2015, and that the Commission has no jurisdiction to investigate it and
That the complainant’ case for discrimination in access to employment is likewise misconceived within the meaning of S. 77A, because firstly he never applied for the relevant positions and secondly, because the positions were publicly advertised prior to the amendment of the Employment Equality Acts, by S. 5(c) of the Equality (Miscellaneous Provisions) Act 2015, to give individuals standing to litigate against same. Hence the complainant again lacks legal standing to bring a complaint, and the Commission has no jurisdiction to investigate this matter, either.
______________________
Stephen Bonnlander
Equality Officer
19 September 2016