FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : BROTHERS OF CHARITY SERVICES GALWAY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - KIERAN O' TOOLE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. DEC-E2016-111.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 5th September 2016. A Labour Court hearing took place on the 7th March 2017. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Kieran O’Toole against a preliminary decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2011 (the Acts), where the Adjudication Officer held that the claims referred were out of time and were therefore statute barred. The Complainant referred three claims to the Workplace Relations Commission on 9thand 10thMarch 2015 alleging discrimination on the age and gender grounds.
In this Determination the parties are referred to as they were at first instance, hence Mr Kieran O’Toole will be referred to as ‘the Complainant’ and Brothers of Charity will be referred to as ‘the Respondent’.
The Adjudication Officer dealt with the complaint by way of a preliminary investigation pursuant to Section 79 (3A) of the Act. This subsection allows the Adjudication Officer to determine any question as to the entitlement of a person to bring a complaint under the Act by way of a preliminary investigation. Section 83(5) of the Act provides that if the determination of the Court on a preliminary issue against the decision of the Adjudication Officer under Section 79(3) is in favour of the Complainant, the matter shall be referred back to the Director General of the Workplace Relations Commission for an investigation of the substantive issue.
Basis of the Appeal
The Court must examine whether the complaints herein is properly before the Court. The complaints were lodged with the Workplace Relations Commission on 9thand 10thMarch 2015, whereas the Complainant’s complaints relate to alleged discriminatory acts which occurred over a period commencing in December 2009 with the latest incident referred to in his complaint being dated December 2011. The Complainant alleges that the Respondent continues to discriminate against him.
The Respondent submitted that the acts alleged to constitute discrimination were out of time when the complaints were lodged and therefore contended that the complaints were statute barred.
Summary of the Complainant’s Appeal
The Complainant who was unrepresented, provided the Court with significant documentation and numerous submissions to substantiate his position.
In summary, the three cases dealt with by the Adjudication Officer and on appeal to the Court are the following:-
- (i)Case et-154321-ee-15: The Complainant claimed that he was discriminated against on the age ground throughout his employment within the Respondent. He gave specific details of alleged incidents of discrimination between 2009 and 2011.
- (ii)Case et-154627-ee-15: The Complainant claimed that he was discriminated against on the age ground when he applied for the position as Community Link Worker in the latter half of 2010 and early part of 2011.
- (iii)Case et-154633 -ee-15: The Complainant claimed that he was discriminated against on the gender ground when he applied for a confined long-term temporary Care Assistant post in December 2011.
(i)Linked Chain of Events
The Complainant compared his case with that ofNUIG v Mary DempseyEE/2009/275where the Equality Officer found that there was a linked chain of events of discrimination which allowed the claim (which would otherwise be out of time) to be considered in time. He submitted that similar circumstances existed in his case and accordingly submitted that his claims should be considered as being in time.
(ii)Dignity at Work Policy
The Complainant referred to the Respondent’s Dignity at Work Policy which deals with sexual harassment and harassment. It makes specific reference to the Codes of Practice issued under the Safety Health and Welfare at Work Act 2005, the Industrial Relations Act, 1990 and the Employment Equality Act 1998. It also refers to the Health and Safety Authority's Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work, the Labour Relations Commission's Code of Practice Detailing Procedures for Addressing Bullying in the Workplace and the Equality Authority's Code of Practice on Sexual Harassment and Harassment at Work. Therefore, the Complainant contended that bullying, harassment, health, and discrimination are all interrelated manifestations of penalisation by management against an employee. Therefore he submitted that by directly bringing actions externally on the grounds of harassment and health, he had thereby also indirectly and informally raised the associated issue of discrimination.
(iii)Linkage
The Complainant submitted that the flawed recruitment processes in 2010 and 2011 formed part of a chain of connected events that provided relevant context and background to past actions he had taken against the Respondent.
- (iv)Exhaustion of Internal Mechanisms
The Complainant stated that throughout the latter half of 2011 and 2012, he was engaged in an investigation of bullying allegations that he made against his former manager under the Respondent’s Dignity at Work policy. The investigators report was completed in September 2012, he sought to have a fresh investigation carried out as he was not satisfied with the outcome of the investigator’s report. This request was denied.
He contended that given the explicit linking of bullying, safety and discrimination issues within the Dignity at Work policy, the discrimination which he alleged occurred in 2010 and 2011, in addition to many other matters raised in his case, were also indirectly addressed.
He referred to actions he took against the Respondent under health and safety legislation therefore he maintained that he had thereby also indirectly raised the associated issue of discrimination. Furthermore he submitted that Management were directly responsible for a delay of twenty months within a thirty month period in the investigation of his bullying complaints.
- (v)Medical Reports
The Complainant stated that the impact of the Respondent’s attitude to him couldn't but have impacted negatively on his health and well-being and that was reflected in the medical reports which confirm that he suffered from stress.
- (vi)Attendance at Hearings
The Complainant stated that his attendances at hearings before a Rights Commissioner in August 2013 and February 2014 and also at the Labour Court in April 2014 he was required to attend on his own time and cost whereas three senior management officials attended on the Respondent’s time. This he maintained was penalisations of him by the Respondent and an indication that the Respondent has taken every opportunity to discriminate against him.
He confirmed that for subsequent Labour Court hearings, management allowed his attendance to be on the same basis as other attendees.
- (vii)New Information
The Complainant contended that management had deliberately withheld incriminating information. He said that the Respondent failed to provide him with recommended and approved physiotherapy treatments for an injury he received following an assault at work on 3 June 2010. This he submitted reflected the mindset of management that allowed discrimination against him to flourish. The Complainant stated that he only gained access to this fact early in 2015, namely that management had demonstrated disregard and contempt for his safety, health and welfare. He contended that it was necessary to have full transparency on the matter before he could formally bring an action on discrimination.
He submitted that the enforced release of this information in 2015 should be considered the key date to bring his cases within the time limits.
- (viii)Correspondences Related to Discrimination
The Complainant stated that he had raised a query of discrimination in written correspondences with Workplace Relations Commission in early 2013 and had initiated contact with the Equality Tribunal as far back as October 2014, therefore he submitted that his cases were well within the time limits. Furthermore, he said that he raised these issues in proceedings held before both the Workplace Relations Commission and the Labour Court in February 2013/April 2014 in a claim where he alleged that an investigation into his allegations of bullying and harassment was flawed and sought a new investigation. Thirdly, in the proceedings he took under safety health and welfare legislation, he also raised issues of discrimination before the Workplace Relations Commission and the Labour Court in April 2014/September 2014. The Complainant said that he raised issues of alleged discrimination at those fora in his submissions to the Workplace Relations Commission and the Labour Court and had anticipated that the latter would simultaneously deal with his claims of discrimination in those proceedings.
The Complainant stated that it was the outcome of theMary Dempsey v NUIGcase at the Equality Tribunal in May 2015 combined with the impact of a chain of events on time limits that provided him with the impetus to take his cases of discrimination externally.
(ix)Correspondence dated 30thJune 2015 to the Adjudication Officer
The Complainant referred to correspondence between him and the Adjudication Officer dated 30thJune 2015 which related to clarification of one of the complaints he submitted i.e. case et-154621-ee-15. He submitted that this item of correspondence has been misinterpreted and misconstrued by the Adjudicating Officer in arriving at his decision as it completely ignored its purpose and its context within the multitude of written exchanges between the Equality Tribunal and himself.
Summary of the Respondent’s Position
On behalf of the Respondent, Mr John Brennan, IBEC,rejected the Complainant's substantive allegations and held that no discrimination of any form occurred. He addressed the jurisdictional issue under Section 77(5)(a) of the Acts and contended that the complaints were not properly before the Court as they were well outside the six month time limit. Furthermore, he stated that no application had been made by the Complainant to seek an extension to the time limit as provided for in Section 77(5)(b) and he argued that no extension of time was warranted as no reasonable cause both explaining and affording an excuse for the delay has been furnished.
Mr Brennan stated that in any event, that as the matters complained of are four to six years old they are therefore well out of time.
In support of its contention that the claims were statute barred, Mr Brennan cited the case ofSheehy v Bishop MoriartyUD 1246/2008, where the Tribunal held:-
- "Logic dictates that this issue (time limit) must be dealt
with at the commencement of the hearing and before the
Tribunal proceeds tosubstantively consider the claims."
"The appellant has submitted that the Tribunal has the
authority, based on constitutional ornatural law and
justice principles, toconduct an investigation orhearing
into this case. The Tribunal cannot accept this argument.
The Tribunal has been set up under statute by the
Oireachtas inpursuance of its constitutional powers as
legislature. The Tribunal will always have regard tolegal
and constitutional rights inexercising its limited
jurisdiction but itcannot assume extra legal authority to
hold a hearing into an alleged unfair dismissal claim
which isstatute barred. Such an action would bein
fundamental breach of its powers and would, quite rightly,
beoverturned by the Courts."
Mr Brennan stated that all of the Complainant’s complaints are a re-run of different claims he had already processed under various pieces of employment legislation which were not held to be well founded. He submitted that the Complainant was attempting to re-run them under a "discrimination" banner – this Mr Brennan submitted was an abuse of process.
Mr Brennan made reference to the Complainant’s argument that he was influenced to pursue his case following the case ofMary Dempsey v NUIG May 2014EE/2009/275, yet that case issued in 2014 and he did not lodge his case until a year later. Moreover, Mr Brennan disputed therelevance of theNUIGcase.
Mr Brennan contended that the reference the Complainant made to other proceedings he took under safety, health and welfare legislation and under the fixed term workers act and submitted that none of these arguments got around the statute bar. Furthermore, he submitted that ignorance of the law, including ignorance of time-limits does not stop time-limits from running. In any event, the Complainant was in receipt of Union advice and/or its legal advisors at one time, such legal advisors could and should have informed the Complainant of the time limitations. In support of the Respondent’s position, Mr Brennan citedDepartment of Finance v Augustine O'Connell,EET091. In that case the appellant alleged that incorrect advice received from the Equality Authority delayed or limited him from bringing his claim within the relevant time-limits. The Court rejected this argument, stating:-
- "notwithstanding whatever advice the complainant was
given by the Equality Authority, this could neither explain
nor justify the delay. At alltime[s] the complainant had a
right to process his claim under the Act and this should
have been known tohim. Moreover it issettled that
ignorance of one's legal rights does not afford a justifiable
excuse for afailure to bring a claim within a statutory
time-limit ..."
A Series of Connected Events
While denying that any form of discrimination occurred, Mr Brennan disputed the Complainant’s contention that the alleged acts of discrimination constituted “a series of connected events". He refuted the allegation that the alleged acts of discrimination were on-going. He asserted that the fact that the Complainant was not successful in the promotion he wanted and that his request for a second bullying investigation was not granted and that he did not get the contract of employment he desired does not amount to ongoing discrimination against him - what occurred thereafter was merely a consequence of those decisions. All of these issues occurred 6-7 years ago. Mr Brennan submitted that if a discriminatory act occurred during any of these acts then time ran from that date, not any later.While the consequences of these acts may continue to exist, this does not make those consequences new acts of a purported discrimination.He concluded that the Complainant’s allegations of discrimination are out of time, therefore they are statute barred and not properly before the Court.
The Law
Section 77 (5) of the Acts states:
- "(a) Subject to paragraph (b),aclaim for redress in respectof
discrimination or victimisation may not bereferred under this
section after theend of the period of6months from thedate of
occurrence of the discrimination or victimisation to which the
case relates or, as the case may be, thedate of its most recent
occurrence.
(b) On application byacomplainanttheDirector or Circuit
Court, as the casemay be, may, for reasonablecause, direct
that in relation tothe complainant paragraph (a) shall have
effect as if forthereferencetoaperiod of6 months therewere
substituted a referenceto such period notexceeding 12 months
as is specified in the direction;and,wheresuchadirection is
given,this part shall haveeffect accordingly.- (6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.
- (6A)
For the purposes of this section —
(a) discrimination or victimisation occurs—- (i) if the act constituting it extends over a period, at the end of the period,
(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and
(iii) if it arises by virtue of a provision which operated over a period throughout the period,
- (i) if the act constituting it extends over a period, at the end of the period,
(b) a deliberate omission by a person to do something occurs when a person decides not to do it, and
(c) a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either –- (i) does an act inconsistent with doing it, or
(ii) the period expires during which the respondent might reasonably have expected to do it.
- (i) does an act inconsistent with doing it, or
- (6A)
Conclusions of the Court
The Complainant contends that the discriminatory practices of which he complains extended over a period commencing in December 2009 were ongoing and continued up to the time he made his complaint to the Workplace Relations Commission. Furthermore, it is the Complainant’s submission that the time limit in relation to the totality of his claims is affected by the misrepresentation by the Respondent when it failed to provide him with recommended and approved physiotherapy treatments for an injury he received following an assault at work on 3 June 2010. The Respondent contends that it is only those alleged acts that occurred in the period between December 2009 to December 2011 that can be relied upon for the purpose of this appeal.
- Section 77(5) of the Acts
The Court must consider whether the Complainant’s complaints of discrimination were properly referred to the Workplace Relations Commission within the six month period commencing on the date of the occurrence of the event giving rise to the claim, as prescribed by Section 77(5) of the Acts and whether alleged acts of discrimination that occurred outside the six month period ending on 10th March 2015 (the date on which the within complaint was referred to the Workplace Relations Commission) can be taken into account in this appeal.
There can be no doubt that the acts of discrimination which the Complainant alleged occurred between December 2009 and June 2011 are outside the time limit provided under Section 77 (5)(a) and (b) of the Acts and are statute barred, unless they are saved as being part of a continuum.The Court inCounty Cork VEC v Ann HurleyEDA1124 interpreted the relevant sections of the Acts as follows: -
“Subsection (5) of s.77 deals with a situation in which there are a series of separate acts or omissions which, while not forming part of regime, rule, practice or principle, are sufficiently connected so as to constitute a continuum. The circumstances in which a corresponding provision of UK law can come into play was considered by the Court of Appeal inArthur v London Eastern Railway Ltd[2007] IRLR 58. Here the Court was concerned with a claim of victimisation in the form of a series of acts directed against the complainant, some inside the three-month time limit provided at s.48 of the UK Employment Rights Act 1996, (which corresponds to s.77(5) of our Act) and some outside that limit. In considering if the time-limit in respect of all of the acts relied upon stated to run from the last such act Mummery LJ said (at para 30,31): -- The provision in s.48(3) regarding complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.
The provision can therefore cover a case where, as here, the complainant alleges a number of acts of detriment, some inside the three-month period and some outside it. The acts occurring in the three-month period may not be isolated one-off acts, but connected to earlier acts or failures outside the period. It may not be possible to characterise it as a case of an act extending over a period within s.48(4) by reference, for example, to a connecting rule, practice, scheme or policy but there may be some link between them which makes it just and reasonable for them to be treated as in time and for the complainant to be able to rely on them.”
- The provision in s.48(3) regarding complaint of an act which is part of a series of similar acts is also aimed at allowing employees to complain about acts (or failures) occurring outside the three-month period. There must be an act (or failure) within the three-month period, but the complaint is not confined to that act (or failure.) The last act (or failure) within the three-month period may be treated as part of a series of similar acts (or failures) occurring outside the period. If it is, a complaint about the whole series of similar acts (or failures) will be treated as in time.
When questioned by the Court the Complainant could not identify any alleged act of discrimination which occurred within the six months from 10 September 2014 until 9/10 March 2015. Instead he contended that the Respondent engaged in discriminatory treatment of him which was ongoing. He referred to the mindset of management that allowed discrimination against him to flourish as he alleged that it had demonstrated disregard and contempt for his safety, health and welfare by not informing him for five years of his right to have physiotherapy treatment.
- Dignity at Work Policy
- Exhaustion of Internal Mechanisms
The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.
Section 77 of the Acts, is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the Workplace Relations Commission, such a complaint should be in writing and submitted within the time limits provided for in Section 77 (5).
- Attendance at Hearings
The Complainant submitted that as he was obliged to take time off at his own expense for his attendances at hearings before a Rights Commissioner in August 2013 and February 2014 and also at the Labour Court in April 2014 that this was a form of penalisation by the Respondent. The Court notes that no claim of victimisation/penalisation under section 74 of the Acts was referred by the Complainant to the Workplace Relations Commission, no decision on such a claim has been made by the Adjudication Officer and accordingly there is no appeal of such a decision before the Court. Therefore the Court has no jurisdiction to hear this complaint.
- Other proceedings before an Adjudication Officer/Labour Court
The Court is satisfied that other than the three claims which are the subject matter of this case, no claims were referred under the Acts by the Complainant. The Complainant referred a number of other complaints under different employment law statutes which have been processed.
Court’sfindings Section 77(5) and (6A) of the Acts
In this case the most recent occurrence of the alleged discrimination to which the complaint relates is the application for the Care Assistant post. That competition took place in December 2011. Hence, the time limit prescribed by Section 77(5)(a) started to run from that date and would have expired in June 2012. The within complaint was lodged in March 2015. Even if the Court were to grant an extension of time pursuant to Section 77(5)(b) of the Acts, that claim is clearly out of time.
In support of his contention that his complaint came within the parameters of Section 77 (5) as it demonstrated a linked chain of events, sufficient to indicate acts of discrimination by the Respondent extending over a period of time. In that regard, the Complainant relied upon the case ofMary Dempsey v NUIG. In that case, the Tribunal found:-
- “In applying the jurisprudence of this Decision, I note that the complainant is complaining about a number of issues set out above which she alleges constitute an ongoing policy of discrimination in relation to her conditions of employment………On the 30thof April 2009 the complainant referred a complaint to the Director, which was within 6 months of this issue complained about on the 5thof December 2008. Having regard to my findings below, I find that this was a related act of discriminatory treatment in relation to her conditions. I am also satisfied that the complainant has established a satisfactory link between all incidents and they can be considered as separate manifestations of the same disposition to discriminate and constitute an ongoing act or a continuum of discrimination within the meaning of section 77. I find therefore that the complaints were referred within the six month time limits provided for in section 77(5)(a) of the Acts and that I have jurisdiction in the matter.”
InCounty Cork VEC v Ann HurleyEDA1124 the Court examined this issue and held as follows: -
- “Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387).
This subsection would apply where, for example, an employer maintains a discriminatory requirement for access to employment or promotion. In the case of victimisation, it would apply, for example, where an employer pursues a policy or practice of not affording certain benefits to employees who brought equality claims. In such a case the time limit will only run from the time that the policy or practice is discontinued. Hence an aggrieved party could maintain a claim in respect of acts or omissions which occurred in pursuance of the policy or practice regardless of when the act or omission occurred. There is, however, authority for the proposition that an act occurring after the presentation of the Complainant’s complaint may not be taken into account when determining whether there was a continuing act.”
- “Subsection (5) and subsection (6A) of s.77 deal with different forms of continuing discrimination or victimisation. Under subsection (6A), an act will be regarded as extending over a period, and so treated as done at the end of that period, if an employer maintains and keeps in force a discriminatory regime, rule, practice or principle which has had a clear and adverse effect on the complainant (Barclays Bank plc v Kapur [1989] IRLR 387).
In the circumstances found by the Court above, the Court can see no basis upon which it could be held that the matters referred to above which the Complainant alleges are ongoing acts of "discrimination" (relating to safety, health and welfare matter, fixed term contracts and findings of an investigators report) could be sufficiently connected to alleged acts of discrimination which occurred between December 2009 and June 2011 so as to be characterised as separate manifestations of the same "discrimination". Consequently the Court is satisfied that they do not constitute a continuum of the discrimination for the purpose of Section 77(5) of the Acts. Accordingly the Court must hold that the Complainant’s complaints were presented outside the statutory time limit and are statute barred.
- Section 77(6) of the Acts
In the alternative the Complainant sought to rely on the provisions of Section 77(6) of the Act in contending that the delay in presenting his claims was due to misrepresentation by the Respondent when it failed to inform him in 2010 of his right to the physiotherapy treatment. Thereby delaying the start of the time limit until early 2015, the date he discovered the misrepresentation.
The Court considered the meaning of the term “misrepresentation” inA Bank v A WorkerEDA104, where it held as follows:-
“ The term ‘misrepresentation’ is generally understood as referring to a false statement of fact, intended to be acted upon, which actually misleads the person to whom it is addressed. In the context in which the term appears in s. 77(6) of the Act operative misrepresentation can arise where: -
(a) The Respondent makes a false statement of fact in respect to some material particular affecting a cause of action under the Act;(b) The Complainant believed the statement to be true, and(c) In reliance on the truth of the statement the Complainant delayed in initiating a complaint under the Act.
Determination
For the reasons set out above the Court determines that the Decision of the Adjudication Officer is affirmed and the Complainant’s appeal is dismissed.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
27 March 2017Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.