EMPLOYMENT EQUALITY ACTS
DECISION NO. DEC-E2018-025
PARTIES
Marian Jaroslaw Nowak
Complainant
V
Fold Housing Association Ireland Ltd
(Represented by IBEC)
Respondent
File reference: EE/2014/348
Date of issue: 11 December 2018
Dispute:
1.1 On the 17th June 2014, the complainant referred a complaint of discrimination, discriminatory dismissal and harassment on grounds of gender, race, age and disability. In accordance with powers under section 75 of the Employment Equality Acts, the Director delegated the case to me, Kevin Baneham, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts, on which date my investigation commenced. In accordance with Section 79(1) of the Employment Equality Acts and as part of my investigation I proceeded to hearing on 16th December 2016. The complainant attended the hearing and was accompanied by two witnesses. The respondent was represented by IBEC and two witnesses attended on its behalf.
1.2 This decision is issued by me following the establishment of the Workplace Relations Commission on the 1st October 2015, as an Adjudication Officer who was an Equality Officer prior to the 1st October 2015, in accordance with section 83(3) of the Workplace Relations Act, 2015.
Submissions and evidence of the Complainant
2.1 The complainant outlined that the last incident of discrimination occurred on the 1st April 2014; this was the occasion when the respondent sent him documentation from 2010. The complainant outlined that he could not leave the room for November and December. The discriminatory act on the 2nd January 2014 was when he asked about annual leave and public holidays, monies he was never paid. There was lots of correspondence about these issues in October, November and December.
2.2 The complainant outlined that his last day in work was the 5th July 2013 when he was thrown out of the building. This was also a discriminatory act as he was not assigned hours afterwards. The complainant said that he could not submit this complaint immediately because of his lack of English and the fact that he had no legal representation. His son wrote on his behalf in October and November 2013. The complainant said that he sent the EE2 form on the 29th October 2013 raising gender, disability and race. The complainant submitted that each recipient was obliged to respond to the EE2. The complainant submitted that the respondent had made a misrepresentation in the EE3 form, for example refuting that the incident of the 16th January 2013 occurred.
2.3 The complainant outlined that there were three occasions when he was told he could take annual leave but only to be told later that this was a mistake. He had also asked for gloves that he could use, but they were not provided. The complainant outlined that he had been falsely accused of sleeping at work. He had started work at 9am and was sitting in front of a big window at 11.25am. He was sitting and blinking at the time. He was called to the office and accused of sleeping, which he denied. He then returned to work and gave a drink to a resident. He was later sent home. On Monday 8th July 2013, the complainant sought to raise the incident with a manager, who said that she was not involved. He commented that the investigation meeting consisted of 90 minutes of abuse and harassment at the hands of two managers.
2.4 The witness outlined that she was a nurse manager for the respondent and worked there between 2007 and 2012. Her duty was to look after vulnerable patients and she acted when she witnessed abuse. She was paid a flat rate and was taken off weekends following complaints made against her. She observed the complainant ask for large gloves for giving personal care. She commented that colleagues were treated better regarding arriving and leaving work. Only foreign staff were threatened when they left early.
2.5 The second witness outlined that she worked for the respondent between 2007 and 2014. She was senior care assistant. She witnessed the complainant being thrown out of the building. She was responsible for preparing the rota and was told not to give the complainant hours. The respondent informed her that the complainant had been caught sleeping on the job and this had not been the first time. She rang the complainant to tell him that his hours had been cancelled. The complainant was never provided large enough gloves and was challenged when he left work to acquire suitably sized gloves. Others were treated differently, for example nothing was said to Irish staff who watched TV while at work. The complainant had applied for a permanent role, but this was given to an unqualified, Irish person. The complainant was also accused of stealing gloves in two occasions, in late 2012 or early 2013.
2.6 In closing comments, the complainant said that he was not able to return to work in September and October as he was sick. There was no basis to investigate the sleeping incident and this took place because he is Polish. The complainant outlined that the following incidents were within the claim of discrimination: the provision of gloves, his application for a permanent position, the parking incident, the allegation of sleeping at work, the 2011/12 course, the safety meetings, the absence of an appraisal and the return to fitness process. He also claimed harassment and said that his complaint was mainly on the race ground.
Submissions and evidence of the respondent:
3.1 The respondent submitted that the complainant could not advance claims of discriminatory dismissal along with his separate unfair dismissal proceedings. The respondent relied on section 101 of the Employment Equality Act. The respondent also referred to the limitation period provided by the Employment Equality Act and submitted that only one incident occurred within the 12-month period. This was the events of the 5th July 2013. The respondent outlined that other complaints had been ventilated elsewhere. The respondent submitted that the lack of large gloves cannot amount to a prima facie case of discrimination.
3.2 The respondent witness outlined that there had been an order of large gloves in 2011 and several employees used them. She was not aware of this issue and it was standard to order gloves. In respect of the correspondence between October 2013 and April 2014, the witness said that annual leave was calculated over a quarter. The complainant had been overpaid in June 2013. The complainant then advised that he could not work due to back pain. The respondent never received a letter from the complainant to say he had recovered. The respondent wrote to the complainant to report back when he was able to work. Commenting on the complainant’s 2013 interview, the witness said that the complainant had not scored high enough. The witness said that the complainant was asked to submit evidence of bullying and harassment. He was invited to come in and the allegation would be investigated. There were also shifts available. At the meeting, the complainant was offered the opportunity to make a statement.
3.3 The second witness outlined that on the 16th January 2013, she spoke with the complainant as he had parked adjacent to a dip in the footpath. This dip facilitated mobility access. She decided that everyone would work weekends, and everyone was provided the same roster. She also wanted to know if people were swapping shifts. In July 2013, a colleague had found the complainant asleep. He was then asked to leave and advised to see a doctor. The respondent carried out an investigation into the sleeping incident.
Findings and conclusions:
4.1 The complainant commenced employment with the respondent on the 15th November 2010 and resigned on the 23rd October 2013. This complaint was referred to the Workplace Relations Commission on the 17th June 2014. The complainant ventilated issues arising from this employment via other employment law statutes. A claim pursuant to the Unfair Dismissals Act was heard by a Rights Commissioner on the 9th December 2014. This found that the complaint was statute-barred. This decision was affirmed by the Labour Court, on appeal by the complainant. The Labour Court also affirmed that a complaint made pursuant to the Organisation of Working Time Act was made outside of the permissible time period and there was no justifiable reason to extend time. A complaint pursuant to the Minimum Notice & Terms of Employment Act failed for want of prosecution.
4.2 At the hearing of this employment equality complaint, the complainant set out eight issues relating to discrimination as well as harassment and discriminatory dismissal. The complaint form refers to the grounds of race, gender, age and disability and at the hearing, the complainant emphasised the nationality element of the claim, i.e. his Polish nationality. He also made detailed written submissions, amounting to 519 pages. I have read and considered the written documentation. The respondent argued that the issues were out of time and that the dismissal element of the claim could not proceed because this had been ventilated by way of the Unfair Dismissals Act.
4.3 Section 77 of the Employment Equality Act sets out the limitation period for complaints. Section 77(5) states:
“(a) Subject to paragraph (b), 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.”
(b) On application by a complainant the Director General of the Workplace Relations Commissionor 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.”
4.4 The complaint form was date-stamped by the Equality Tribunal on the 17th June 2014. The cognisable six-month period commenced on the 18th December 2013. The complainant resigned from his employment on the 23rd October 2013. The complainant refers to dates of contravention of the 2nd January and 1st April 2014. This followed a data access request submitted by the complainant on the 27th November 2013. Inter alia, this sought data relating to his applications for posts with the respondent in 2011 and 2012/13. The respondent replied on the 17th December 2013, stating “I write in response to your letter dated 27 Nov 2013 which was sent via recorded delivery post and was subsequently received by me on 03 Dec 2013 following my return to work. Please find enclosed requested documentation pertaining to your employment with Fold Ireland. Please be advised that we hold recruitment documentation with a 3rd party storage company based in Northern Ireland. I have requested a recall of this archived documentation and will furnish this when received.” The complainant wrote a letter entitled ‘formal complaint’ on the 2nd January 2014, seeking the recruitment documentation and a letter of the 13th February 2011. The respondent replied on the 1st April 2014, stating “I write in response to your letter requesting documentation pertaining to your employment with Fold Ireland. As per my previous correspondence this documentation was in archive storage in Northern Ireland with a third party storage company. I trust the aforementioned addresses the matters in your letter, however if I have inadvertently omitted any documentation please advise me of this.” It is clear that, at its height, such an exchange of correspondence cannot form a contravention of the Employment Equality Act. There was no contravention within the six-month limitation period.
4.5 The next question is whether the complainant has shown reasonable cause to allow an extension of time to the 12 months provided in section 77(5)(b). Such an extension would allow consideration of the circumstances around the ending of the complainant’s employment and consideration of any continuum of discrimination (section 77(5)) or a discriminatory regime, rule, practice or principle (section 77(6A). It is for the applicant for an extension of time to explain the delay and provide a justifiable excuse for the delay (see Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425).
4.6 In this case, I note the complainant’s extensive written correspondence with the respondent over the course of his employment. This includes his resignation and other letters of October 2013. On the 1st December 2013, the complainant asserted an entitlement to paid annual leave, including annual leave accrued on sick leave. The respondent replied on the 10th December 2013 to say that he has been paid all annual leave due. The complainant also served an EE2 form, to which the respondent submitted a detailed six-page EE3 reply. Throughout his correspondence, the complainant quoted Irish, UK and European Union law. It is clear that the complainant was well able to articulate his view in writing and the respondent engages in reply. Given this extensive chain of correspondence, it cannot be said that reasonable cause existed that explains and excuses the delay in the complainant referring these issues to the Equality Tribunal / Workplace Relations Commission. There is, therefore, no basis to extend time pursuant to section 77(5)(b).
4.7 In his evidence, the complainant referred to misrepresentations made by the respondent, for example in its EE3 reply. Section 77(6) provides: “(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.” In A Worker v A Bank EDA104, the Labour Court held: “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.” Applying these principles to this case, while the complainant disagreed with the contents of the EE3 reply, he was not misled by them. The respondent’s responses and actions did not delay the complainant from lodging the complaint form to the Equality Tribunal / Workplace Relations Commission. I find that no misrepresentation occurred within the ambit of section 77(6).
Decision:
5.1 I conclude my investigation into the complaint and I find that the complaint was made outside of the statutory time limits provided by the Employment Equality Acts and I do not have jurisdiction.
_______________________________
Kevin Baneham
Adjudication Officer / Equality Officer
11 December 2018