ADJ-00003893

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003893

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

Date of Adjudication Hearing: 10/02/2017

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Act, 1998 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing: 

Complainant’s Submission and Presentation: 

The Complainant is a general operative and commenced working with the Respondent on the 17^th of September 2007. 

The Complainant’s case is that of discrimination on grounds of disability in failing to give reasonable accommodation for a disability and dismissal for discriminatory reasons. 

The Workplace Relations Compliant form stated that the date of notice received was the 8^th of December 2015 and that the date the employment ended was the 5^th of January 2016. 

The complaint form was received by Workplace Relations on the 4^th of July 2016. 

The Respondent raised a preliminary issue with regard to time limits. 

The Employment Equality Acts set out: 

77(5). Subject to subsection (6), 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates. 

77(6). If on an application made by the complainant the Director, the Labour Court or, as the case may be, the Circuit Court is satisfied that exceptional circumstances prevented the complainant's case (other than a claim not to be receiving remuneration in accordance with an equal remuneration term) being referred within the time limit in subsection (5)—  

(a) the Director, the Labour Court or the Circuit Court, as the case may be, may direct that, in relation to that case, subsection (5) 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 

(b) where such a direction is given, this Part shall have effect accordingly. 

The Complainant confirmed that he was not applying for an extension of time under Section 77 (6). 

The Complainant submitted that the discriminatory act was the date on which the notice of termination had expired and that was the date of its most recent occurrence. 

The Complainant relied on the definition of the date of dismissal in the Unfair Dismissals Act. 

Respondent’s Submission and Presentation: 

The Respondent’s submission was that the alleged act of discrimination was the decision to dismiss and this took place on the 8^th of December 2015. 

Decision:

Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

There is no definition of date of dismissal in the Employment Equality Acts 1998. The definition of dismissal in the Employment Equality Act 1998 (as amended) only specifically provides for what is commonly known as constructive dismissal. 

Section 77 (5) requires a claim to be lodged within six months from the date of occurrence of the discrimination to which the case relates or as the case may be the date of the most recent occurrence. 

I accept the Respondent’s submission that the alleged act of discrimination by the Respondent was the decision to terminate the Complainant’s employment. This alleged act was set out in the letter of the 8^th of December 2015 to the Complainant which contained the following paragraph: 

“As a result…..[Respondent]…. has reviewed your circumstances and examined all the facts as presented. After careful consideration, we have no further option but to terminate your contract of employment with affect from the 8^th of December 2015.” 

In following the Labour Court decision of W. Cummins Plasterer’s Limited and Jaroslaw Nowakowski EDA 6/2008, I accept that dismissal is a once off act and cannot be construed as extending over a period within the meaning of Section 77 (6)(a) of the Employment Equality Act. 

The Complainant’s case was lodged on the 8^th of July 2016 outside the time limit imposed by Section 77 (5). 

Therefore I have no jurisdiction to hear this complaint. 

Dated:   28 March 2017