ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004732
Parties:
| Complainant | Respondent |
Parties | Business Analyst | Service Activities |
Complaints
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00006603-001 | 23/08/2016 |
Date of Adjudication Hearing: 31/05/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, and 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.
Background:
The Complainant was employed with the Respondent Company from 4th April 2011 until she terminated the employment on 26th February 2016. The Complainant was a full-time employee and she earned €67,000 per annum. The Complainant referred a complaint to the Workplace Relations Commission on 23rd August 2016 alleging that she had been discriminated against by the Respondent on the grounds of her Gender and Family status and victimising her. Preliminary Issue. – Respondent’s Name The Complainant had lodged her complaint with the WRC against a named Respondent which the Respondent stated was not the correct name of the Respondent and the Respondent stated at the Hearing that they were not consenting to the name change as requested by the Complainant. I note that the Complainant was issued with a written statement of her Terms and Conditions of Employment dated 28th February 2011 which clearly states the correct name of the Respondent Company. I further note that in a letter dated 17th August 2016 from the Complainant’s Solicitor to the Respondent which clearly identifies the correct name of the Respondent Company in that correspondence. The Complainant stated at the Hearing that her Solicitor did not have a copy of her Contract of Employment when the complaint was lodged with the WRC. I not that Section 2(2) of the Employment Equality Act, 1998 as amended provides as follows, For the purposes of this Act, two employers shall be taken to be associated if one is a body corporate of which the other (whether directly or indirectly) has control or if both are bodies corporate of which a third person,(whether directly or indirectly) has control. I note that both named Companies were incorporated, one in 2005 and the other in 2006 although I note that the named Respondent on the Complaint Form was dissolved in May 2011. I further note that in a letter dated 28th February 2011 to the Complainant it clearly states that the Complainant is “an employee of ……” which is the Respondent’s name quoted on the complaint form
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Preliminary Issue – Time Limits.
This complaint was lodged with the WRC on 23rd August 2016, Section 77(5)(a) provides as follows – Subject to paragraph (b) a claim for redress in respect of discrimination or victimisation may not be referred under this section after the endof 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 Complainant stated that the most recent occurrence of discrimination and victimisation occurred after the Complainant tendered her resignation with 4 weeks’ notice on 21st January 2016 to leave on 18th February 2016, when she stated that she was threatened by a named Employee, to take her Bonus from her if she did not extend her notice period by 1 week and 1 day and she terminated the employment on 26th February 2016.
The Respondent argued that the Respondent operated an Incentive Plan, provided to the Hearing. Evidence was presented to the Hearing concerning the payment of this incentive Plan or Bonus. This clearly states that “employees must be continuously employed from the first business day of the fourth quarter through to the end of the annual performance period and….must be employed on the date the award is paid to receive any …award”. The payment date for Ireland was 26th February 2016 being the date the Complainant left the employment. The Complainant was paid the Bonus. The Respondent argued that the Labour Court in County Cork VEC v Hurley EDA 1124 held “must be some reality in the claim that acts of harassment actually occurred within a six month period from the date of lodging of the claim, being the limitation period as otherwise a complainant could revive a claim which had been extinguished by time limits simply by raising an additional related claim, no matter how tenuous within the time limit.”
The established facts of this complaint is that it was lodged with the WRC on 23rd August 2016. Therefore in accordance with Section 77 (5)(a) the period covered by this complaint is from 24th February 2016 to 26th February 2016 when her employment terminated. Both Parties confirmed that the Complainant tendered her resignation on 21st January 2016 to terminate on 18th February 2016. The Complainant alleged that a named employee of the Respondent threatened her that she would not receive her Bonus unless she extended her notice period. The Complainant stated that she did extend her notice period by one week and one day and left the Company on 26th February 2016, confirmed by the Respondent. Therefore in accordance with Section 77(5)(A) of the Act, the most recent occurrence of discrimination must have occurred between 21st January 2016 when the Complainant tendered her resignation, and 18th February 2016 when her notice was due to expire as sometime between that period the Complainant extended her termination date. Therefore if the most recent occurrence of discrimination took place between 21st January 2016 and 18th February 2016 the time limit for lodging a compliant was 17th August 2016.
Decision. I do not have jurisdiction to hear this complaint as the complaint does not comply with Section 77(5) (a) of the Act in relation to time limits.
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions.
In accordance with Section 79 (6) of the Act I declare I do not have jurisdiction to hear this complaint as the complaint does not comply with Section 77(5)9A0 of the Act
Dated: 29/08/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Time Limits – Name of Respondent Company |