ADJ-00002555

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002555

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

Date of Adjudication Hearing: 02/02/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 Employment Equality Act, 1998, following the referral of the complaint 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

Attendance at Hearing: 

Preliminary Application. 

Complainant’s Submissions. 

The complainant applied for a position within the respondent University . He was informed by way of letter dated 17 June, 2014 that his application for promotion was unsuccessful. On the 20^th June 2014 he was furnished with the feedback from the College Committee and the UCAATP.

By letter dated 10 December, 2014 he appealed the decision. He was informed that his appeal was unsuccessful by letter dated the 23 June, 2015.

The complainant did not lodge his claim with the Workplace Relations Commission until 24 March, 2016.

The complainant argued that the date of the most recent act of discrimination was 23 June, 2015, the date the decision in relation to his appeal was furnished to him. He accepts that that date is outside of the statutory six month time limit for lodging his claim. He stated that the reason for the delay was three fold. Firstly, he did not know that he had six months to lodge his claim. Secondly, he did not know where to lodge it. Thirdly, he was very busy. When he took up his position in Helsinki he put it on his ‘to do’ list for January 2016. He was working long hours in a new University and he simply didn’t have time to focus on the claim. In December, he went home to Germany to spend time with his father who was ill. He didn’t focus on this application over the Christmas period because he wanted to spend time with his family and in particular his father.

He did do some research while in Helsinki in relation to his claim. He felt that his claim may be of European Court interest so he contacted some authority in Brussels. From there he was directed to the Irish system. He stated that he lodged a claim in January with IHREC (Irish Human Rights and Equality Commission). He accepted that he had no documentation to corroborate that submission. He also accepted that the e-mail of confirmation form the IHREC stated that they received his e-mail on the 1^st March but does state that they noted that he states that he lodged his claim in January.

The complainant relies on the case of Department of Finance V Impact 200 ELR 6. When deciding on whether or not the matter is statute barred the adjudicator should address the following: 

• The degree of prejudice on the Respondent

• Length of the delay

• Culpable delay

• Merits of the case. 

  It is argued that the respondents are in no way prejudiced because the delay was only a few months. The complainant did not deliberately delay the process. He cannot make submissions in relation to the merits of the case because he is not in possession of all of the facts and documentation required to do so. 

Respondent's Submissions:

By letter dated 17 June 2014, the complainant was informed that he had not been recommended for appointment to the grade of Associate Professor. By email dated 20 June 2014, The complainant was provided with copies of the College Committee and the UCAATP Assessment and Feedback Forms. The complainant submitted his internal appeal against this decision on 10 December 2014. On 6 May 2015, the APAC wrote to the complainant informing him that it was requesting that the UCAATP reassess his application on the following basis:

“The APAC is concerned that an invitation to you to nominate an external examiner was not compatible with university procedures. The UCAATP downgraded your College Committee score from 24 to 21 placing you below the threshold score at which candidates were promoted, without clear explanation. The Appeals committee recommends that your case should be sent back for re-assessment by the UCAATP.”

By letter from the President dated 23 June 2015, The complainant was informed that, at the request of ACAP, his application for promotion to Associate Professor had been reconsidered by the UCAATP. The letter went on to inform the complainant that he had not been recommended for promotion to the grade of Associate Professor by the UCAATP on this occasion.

In relation to the statutory time limit for bringing a claim under the Acts, section 77(5)(a) of the Acts provides:

“…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 of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

It is submitted that the alleged discriminatory treatment of which the complainant complains was notified to him on 17 June 2014, i.e. the date on which the decision not to recommend him for appointment to the grade of Associate Professor was communicated to him, or at the latest on 20 June 2014, i.e. the date on which the feedback from the College Committee and the UCAATP was provided to him. The complainant had six months from this date in which to lodge his complaint under the Acts but he failed to do so. As stated above, the Notice of Complaint was received by the Workplace Relations Commission on 24 March 2016, more than six months after the date of the alleged discrimination. The complaint was in fact presented one year, nine months and eight days after the date on which the alleged discriminatory treatment was notified to him. 

In An Employee v An Employer (RP645/2012), the claimant was not aware of the extent of her legal rights and brought a claim outside the maximum period for bringing a redundancy payment claim. In that case, the Employment Appeals Tribunal referred to Minister for Finance v CPSU, PSEU and IMPACT ([2007] 18 ELR 36) (Appendix 5), where the High Court held that lack of knowledge or awareness on the part of a claimant does not prevent a statutory limitation period from starting to run. Accordingly, in the present case, the statutory time limit for bringing a claim started to run from the date on which the decision not to recommend the complainant for appointment to the grade of Associate Professor was first communicated to him, i.e. 17 June 2014. 

In County Cork Vocational Education Committee v Ann Hurley EDA 1124 the respondent contended that many of the incidents relied upon by the complainant constituting victimisation occurred outside the time limit. The Court stated that occurrences outside the time limit could only be considered if the last act relied upon was within the time limit and the other acts complained of were sufficiently connected to the final act so as to make them part of a continuum.

It is clear from the above care that if an allegedly discriminatory event occurs within the limitation period and has sufficient proximity to earlier allegedly discriminatory events, that redress may be sought in respect of both the former and the latter.

The complainant submitted his appeal against the decision not to promote him on 10 December 2014. By letter dated 23 June 2015, the complainant was informed that the UCAATP found no basis for concluding that its decision not to recommend her for promotion on 17 June 2014 was incorrect, and as such, the original decision was “reaffirmed”. The nature of the reaffirmation simply verifies the earlier decision, and in no way represents a decision made, de novo. To equate the upholding of an earlier decision with making the substantive, original decision would be contrary to logic. Therefore, the letter dated 23 June 2015 could not be held to be the most recent occurrence of the alleged discrimination and the relevant date of the alleged discrimination is 17 June 2014 or 20 June 2014 at the latest (the date on which feedback for the decision was provided).

The appeals process does not provide for the substitution of a differing academic judgement arrived at by the APAC for the academic judgement validly arrived at by the UCAATP. As such and as stated above, there is no new decision taken during the appeals process, unless the original decision of the UCAATP is found to be incorrect.

Furthermore, the upholding of the substantive decision does not constitute an extension of the alleged discriminatory decision over the intervening period as envisaged by section 77(6A) of the Acts, and the relevant date of the alleged discrimination and the relevant date of the alleged discrimination remains 17 June 2014 or 20 June 2014 at the latest.

No allegedly discriminatory act occurred within six months of the complaint, i.e. from 25 February 2016 to 24 August 2016. The relevant date of alleged discrimination is 17 June 2014 or 20 June 2014 at the latest. Accordingly, it is submitted that this claim is clearly out of time.

Without prejudice to the foregoing, if the Adjudication Officer is of the opinion that the alleged discriminatory treatment of which The complainant complains last arose on 23 June 2015, i.e. the date on which The complainant was informed that UCAATP had reconsidered his application but he had not been recommended for promotion, it is submitted The complainant has not put forward any grounds, save for a lack of awareness of the forum, on which the six-month time limit should be extended to twelve months. 

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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.

The facts agreed between the parties.

• The complainant applied for a position within the respondent University.

• He was informed by way of letter dated 17 June, 2014 that his application for promotion was unsuccessful.

• On 20 June 2014 he was furnished with the feedback from the College Committee and the UCAATP.

• By letter dated the 10 December, 2014 he appealed the decision. He was informed that his appeal was unsuccessful by letter dated the 23 June, 2015.

• The complainant did not lodge his claim with the Workplace relations Commission until 24 March, 2016.

The complainant argued that the date of the most recent act of discrimination was 23 June, 2015. That was when the appeals board furnished him with a decision in relation to his appeal. The respondent state that the relevant date is 10 December, 2014 when the original decision not to promote him was communicated to him. They argued that no new decision was made following the appeals process and therefore the date of the original notification is the relevant date.

I find that the relevant date for the purposes of this application is 23 June, 2015. That fact that the appeals board did not overturn the original decision is neither here nor there because they could have. 

Reasonable Cause

I must now decide if the complainant has shown reasonable cause in relation to the delay.

The six-month time limit for making a claim under the Acts may be extended up to twelve months under section 77(5)(b) of the Acts for "reasonable cause". Section 77(5)(b) of the Acts provides as follows:

“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.”

“Reasonable cause” allows for the six month time limit to be extended up to twelve months.

Section 77(5)(a) of the Acts provides:

“…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 of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence.”

The Labour Court has consistently held that the burden of proof in relation to proving “reasonable cause” for the purposes of section 77(5)(b) of the Acts rests on the complainant. In Department of Finance v IMPACT([2005] 16 ELR 6 the Labour Court held, that in considering if “reasonable cause” exists, it is for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. Similarly, in A Bank v A Worker (EDA104), the Labour Court held that in order to accede to an application to extend time beyond the six month time limit prescribed by the Acts, the “irreducible minimum requirement” is that a claimant must demonstrate that there were reasons which both explained the delay and afforded an excuse for it.  

The complainant gave a multitude of reasons for the delay. They ranged from ignorance of the time issue, ignorance of the legal process, the fact that he was very busy and was on vacation with his family.

I am satisfied that he did lodge a claim with the IHREC in March, 2016. That claim does not stop the time running in relation to this claim. Furthermore, that claim was outside of the six month time limited.

I am not satisfied that firstly ignorance can ever amount to reasonable cause. In Abbott Vascular v Baggott (EET121) , the Labour Court questioned whether a “reasonably diligent person, having the same state of knowledge of the material facts as the complainant, would have delayed in pursuing a claim under the Act for the reasons advanced by the complainant”.

In An Employee v An Employer (RP645/2012), the claimant was not aware of the extent of her legal rights and brought a claim outside the maximum period for bringing a redundancy payment claim. In that case, the Employment Appeals Tribunal referred to Minister for Finance v CPSU, PSEU and IMPACT ([2007] 18 ELR 36 where the High Court held that lack of knowledge or awareness on the part of a claimant does not prevent a statutory limitation period from starting to run. Accordingly, in the present case, the statutory time limit for bringing a claim started to run from the date on which the decision not to recommend the complainant for appointment to the grade of Associate Professor was first communicated to him, i.e. 17 June 2014.

Furthermore, I am not satisfied that the complainant was actually ignorant of the process. In his internal appeals letter dated 10 December, 2014 he refers to the Sheehy Skeffington V NUIG case and attaches a link to the RTE coverage of it. In the heading of that news story it states:

‘National University of Ireland Galway has been instructed by the Equality Tribunal to immediately promote a female academic and pay her €70,000 in damages.’

Had the complainant simply googled the words ‘Equality Tribunal’ it would have brought him to a page containing everything he needed to know about lodging his claim. I find his comment that he didn’t open the link or read about the case to be disingenuous.

The complainant also informed the respondent in his letter of appeal that “I have decided to trustfully lay in into the hands of an attorney who will be in touch with UCD legal Office in due time” He stated that that was just an idol threat.

I am also satisfied that being busy or wanting to spend time with your family can never amount to reasonable cause. The fact of the matter is that the complainant made a decision not to address his claim until at the earliest January, 2016. He did so for a variety of personal reasons.

In Sword Risk Services Limited –v- Seamus O’Dwyer (DWT1410) , the Labour Court was concerned with the interpretation of the equivalent “reasonable cause” threshold which a claimant must satisfy to be granted an time extension under the Organisation of Working Time Act 1997 (as amended). The Court confirmed that such extensions of time for making a claim should not be granted in circumstances where a claimant is not actually prevented from making his/her claim in a timely manner, but rather chooses not to do so.

In all of the circumstances I find that the complainant has failed to establish reasonable cause and therefore I do not have jurisdiction to hear the matter.

The complainant’s claim fails. 

Dated: 02 May 2017