EQUALITY OFFICER'S DECISION NO: DEC-E/2017-019
PARTIES
A Library Assistant
(Represented by Femi Danyan, B.L.)
Vs
A County Council
(Represented by Waters & Associates, Solicitors)
FILE NO: Et-153067-ee-15
DATE OF ISSUE: 10th of March, 2017
1. Dispute
1.1 This dispute involves claims by the complainant that she was discriminated against by the respondent on grounds of race, civil and family status, in terms of section 6(2) and contrary to section 8 of the Employment Equality Acts, 1998 to 2015, in relation to other as well as a claim of constructive discriminatory dismissal. The complainant has also submitted a claim in respect of a failure to provide reasonable accommodation for a disability.
2. Background
2.1 The complainant referred a complaint against the above respondent under the Employment Equality Acts 1998 to 2015, to the Equality Tribunal on the 19th of January, 2015.
2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 the Director delegated the case on the 1st of December, 2016 to me, Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of those Acts. This is the date I commenced my investigation. Written submissions were received from both parties. As required by section 79(1) of the Acts and, as part of my investigation, I proceeded to a hearing on the 27th of January, 2017. Final correspondence in respect of this matter was received on the 17th of February, 2017.
2.3 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.
3. Summary of complainant’s case
3.1 It is submitted that
The complainant is from the Czech Republic and was employed by the respondent from the 19th of November 2001 to the 31st of March, 2014,
The complainant was discriminated against on the grounds of race, civil and family status when her application for a career break was refused while another person of a different race was granted a career break at the time,
The complainant was discriminated against on the grounds of race, civil and family status when her application for job sharing was refused,
the refusal by the respondent of the complainant’s application for job sharing and for a career break amounts to a failure to provide reasonable accommodation for a disability,
the complainant was out on sick leave from 6th of January, 2014 and resigned on 31st of March, 2014 while on sick leave as the respondent continued to refuse her requests for job sharing and or a career break,
the complainant’s resignation amounts to constructive discriminatory dismissal.
4. Summary of respondent’s case
4.1 It is submitted that:
the complaint is out of time as it relates to matters which took place prior to and up to March, 2014,
the complainant was not discriminated against on any of the grounds, her application for a career break in May 2013 and for job sharing in August 2013 were refused due to the moratorium on staff recruitment which prevented the respondent from replacing staff,
three other staff members had also been refused career breaks at that time and two had been refused extensions to career breaks,
three other staff members also had job sharing requests refused due to low staff numbers,
the complainant was employed as an Assistant Librarian during the time period,
the moratorium on staff recruitment within the County Councils meant that libraries were the hardest hit and at the time were forced to reduce services and opening hours and some branches had to close down altogether as the restrictions on staffing levels were so severe,
the complainant had been granted work sharing in 2003 for a period of almost 40 months and had also been granted a career break in September 2010 for one year,
the complainant was granted her application for parental leave in April 2013 until November 2013 on a 2 day week basis when requested and when the respondent had no problem with replacing staff,
the respondent was never made aware of any disability at the time of the complainant’s request for job sharing or a career break. The complainant at the time indicated that her requests related to family and childcare issues,
the complaint is out of time as the complainant’s applications for a career break and for job sharing were refused in 2013 and the complaint to the Commission was not submitted until January, 2015,
the complainant resigned of her own accord on 31 March, 2014 and gave no indication that she felt she was being forced to resign,
the complainant, following her resignation requested and was given a very good reference she also requested that she be kept in mind for future weekend contract work with the respondent,
the claim in respect of constructive discriminatory dismissal was not raised until March 2016, 2 years after the complainant left the respondent’s employment.
5. Preliminary Jurisdictional Issue Time Limits
5.1 The respondent submits that the complaint is out of time as it was not submitted within six months of the last date of alleged discrimination. The complaint form submitted by the complainant is dated the 19th of January, 2015 with the last alleged date of discrimination cited as the 31st of March, 2014, the day on which the complainant resigned her employment.
5.2 Section 77(5) of the Acts provides as follows:
“(a) 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 occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.
(b) On application by a complainant the Director or Circuit Court, as the case may be, 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 substitutes a reference to such period not exceeding 12 months as is specified in the direction”.
5.3 It is submitted that the last date of discrimination is the date on which the complainant resigned her employment i.e. the 31st of March, 2014. The complainant submits that she felt forced to resign as the respondent would not grant her request for job sharing or a career break and she was no longer able to work full time. The complainant submits that this matter was ongoing and that she was suffering from health and personal issues which meant she was no longer able to work full time. The respondent submits that the complainant had requested Job sharing and a career break in 2013 which the respondent could not grant due to the moratorium on staff recruitment. The respondent stated that the reasons advanced by the complainant for wanting a career break at the time were due to childcare and personal issues. The respondent stated that a decision to refuse this request was made in May 2013. I t is submitted that the complainant applied for Job sharing in September 2013 and was refused in October 2013 and again in November 2013 following an appeal of the decision. The respondent submits that this was the end of the matter.
5.4 Before considering whether or not the issues relating to the refusal of the career break and the refusal of the complainant’s job sharing application can be considered as continuous or ongoing discrimination on the grounds advanced, I will first decide whether the complaint was submitted within the timeframe specified under the Acts.
5.5 The complainant resigned her position with the respondent on the 31st of March, 2014, this fact is agreed by both parties though the reason for the resignation is in dispute. This means that the complaint would have to be submitted to the Commission by 30th of September, 2014 in order for the complaint to be considered to fall within the 6 months. The complainant submitted her complaint to the Tribunal/Commission on the 19th of January, 2015. Thus the complaint was submitted almost 4 months outside of the six month time limit.
5.6 Section 77(5)(b) of the Employment Equality Acts 1998 to 2011 provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal.
Section 77 (5) (b) states:
“On application by a complainant the Director or Circuit Court, as the case may be, 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.”
5.7 In interpreting this in the instant case, I am taking into account the view of the High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J stated as follows:
"The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".
5.8 I am also taking into account the Labour Court decision in the case of Elephant Haulage Ltd v Mindaugas Juska EET082 where the Court reiterated its view (expressed for example in the case of Cementation Skanska and a Worker (WTC/03/44 Determination No. 0426)), albeit under different legislation (Organisation of Working Time Act) that "That in considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd." In this regard the Court held that there must be a causal link between the circumstances cited and the delay and that the claimant should satisfy the Court, as a matter of probability that had those circumstances not been present he would have initiated the claim in time. The Labour Court went on to state that the "length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time."
5.9 In this case the complaint was referred almost four months outside of the time limit. The complainant in her application for an extension of this time limit has stated that the delay was due to health problems. The complainant advised the hearing that she had suffered from various health issues during and after her employment with the respondent, she advised the hearing that she suffered from Irritable Bowel Syndrome stress and anxiety and feeling generally unwell. It is also submitted that the complainant had various investigative medical procedures carried out in May 2013 and was diagnosed with anxiety and depression in 2014 for which she was prescribed a course of anti depressants. It is submitted that the complainant was not well enough to file a complaint during the six month time period following her resignation.
5.10 The respondent advised the hearing that the complainant had during the 6 month time period following her resignation, during November 2014 been responsible for compiling, editing and producing a book on the local area. This book was presented to the hearing and was by all accounts a decent sized book with many pictures and text providing accounts of people of the local area. The book also states that it was conceived, compiled and edited by the complainant. This book which contains stories, images and history of (the named town) was published in November, 2014 and launched in December 2014. The respondent submits that the complainant also contacted one of her colleagues Ms. B in September 2014 seeking to arrange a photo shoot of the library staff. The respondent submits that given that the complainant was well enough during the six months after her resignation to produce a book she was well enough to fill in a complaint form.
5.11 I find that the reasons advanced by the complainant for her failure to submit her complaint within the time limit, having regard to the respondent’s evidence that the complainant was well enough to conceive compile and edit a book during the relevant time period, do not amount to ‘reasonable cause’ and that she has not shown reasons which both explain the delay and afford an excuse for the delay. Accordingly, I am satisfied from the totality of the evidence adduced in relation to this matter, that the complainant has not established ‘reasonable cause’ for the delay in referring her complaint. I, therefore, am not empowered to direct an extension of time in which to refer a complaint to twelve months in this case. As the claim was made outside of the six months time limit, I find that it is out of time in accordance with section 77 (5) of the Employment Equality Acts.
6 DECISION OF THE EQUALITY OFFICER
6.1 I have completed my investigation of this complaint and in accordance with section 79(6) of the Employment Equality Acts, 1998-2015 I issue the following decision. I find –
(i) I find that the present complaint is out of time in accordance with section 77(5) of the Employment Equality Acts.
___________________
Orla Jones
Adjudicator/Equality Officer
10th of March, 2016