EDA1847

FULL RECOMMENDATION

ADE/18/37

DETERMINATIONNO.EDA1847

ADJ-00008534 CA-00011245-001

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES :

PUBLIC APPOINTMENT SERVICE
(REPRESENTED BY HELEN JOHNSON, B.L., INSTRUCTED BY CHIEF STATE SOLICITORS OFFICE)

- AND -

FRANK FLANAGAN

DIVISION :

Chairman: Ms O'Donnell
Employer Member: Ms Connolly
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Adjudication Officer Decision No. ADJ-00008534 CA-00011245-001.

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 13 November 2018. The following is the Determination of the Court:-

DETERMINATION:

This is an appeal by Frank Flanagan (the Complainant) against Adjudication Officer Decision ADJ-00008534 in a claim of discrimination on the ground of disability. The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts) against the Public Appointment Services (the Respondent).

The Adjudication Officer found that the claim was made more than six months outside of the last date of alleged discrimination and therefore the Adjudication Officer had no jurisdiction to hear the matter.

Background.

The Complainant applied for a position advertised by the Respondent. The first stage of the process required candidates to sit an online psychometric test. Candidates were notified of same on the 10^thJune 2015 and had until the 17^thJune 2015 to complete same. The Complainant sat the test on the 16^thJuly but did not reach the required standard. Following engagement with the Respondent’s staff the Complainant became aware that in exceptional circumstances candidates may be allowed to re-sit the online psychometric test. The Complainant applied to re-sit the test on the exceptional circumstances that that he had suffered a medical illness both before and after the test. On the 25^thAugust 2015 the Respondent asked the Complainant to submit a medical certificate and to explain why he should be allowed re-sit the test. On the 14^thand the 16^thSeptember the Complainant emailed the Respondent seeking details on who he should send the details to and on the process and procedures in relation to taking decisions in relation to him. On the 17^thSeptember he was advised that it was now too late to re-sit as the process had been completed. The Complainant finally submitted a medical certificate on the 22^ndSeptember 2015 which was dated the 9^thSeptember 2015.

As he was not permitted to re-sit the online test the Complainant on the 28^thSeptember 2015 requested a formal review in line with the Commission for Public Service Code of Practice. The Complainant was advised of the outcome of the review by letter dated 27^thOctober 2015 which was not in his favour. The letter advised him of the outcome further and advised that if he was dissatisfied with the outcome of the review he could appeal further, under Section 8 of the CPSA Codes of Practice. On the 6^thNovember 2015 the Complainant requested the CPSA to carry out a further review. The CPSA considered the Complainant’s complaint and made their decision on the 29^thJune 2016 they did not uphold his appeal. The Complainant was advised of the decision by email dated the 13^thJuly 2016 and a copy of the CPSA’s report was attached. It is the Complainant’s claim that he was discriminated against on the grounds of disability when he was not allowed re-sit the psychometric test. He lodged his claim with the WRC on 10^thMay 2017.

It is for the Complainant to establish in the first instance that there was an act of discrimination within the cognisable period.

Preliminary Issue

Jurisdiction of the Court

The Respondent submits that the complaint before the Court was not submitted to the Workplace Relations Commission within the statutory time limit set out in Section 77(5) of the Act. It further submits that no extension of time was sought at first instance.

The Law

Section 77(7) of the Act states:where the complainant’s claim for redress is in respect of discrimination –

(a)By the holder of a recruitment licence under the Public Service Management (recruitment and Appointment) Act 2004 in the course of such recruitment or selection process as is referred to in section 76 (5) (a),
(b)…
(c)…
(d)

The complainant shall in the first instance refer the claim for redress to the holder of the recruitment licence concerned or, as the case may be, to the Minister for Defence or the Commissioner of the Garda Siochana.

(8) where subsection (7) applies to a claim for redress in respect of discrimination, the complainant, may not refer the case under subsection (1) unless
(a)….
(b) the complainant is not satisfied with the decision given on the claim,

And in a case to which paragraph(a) or(b) relates, the end of the period of time which is applicable under subsection (5) shall be construed as –

(i)The end of the period, or
(II) The end of the period of 28 days from the expiration of the period referred to in paragraph (a) or the date of the decision referred to in paragraph (b),
Whichever last occurs.

77 (5) 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.In this case the relevant period in accordance with the Act is 11^thNovember 2016 to the 10^thMay 2017.

Complainant’s case

The dates set out above are not disputed by either party. The Complainant in his submission to the Court drew the Court’s attention to the decision-making process of An Bord Pleanala and to the Court’s determination inCementation Skanska v CarrollWTC0338. However, the issue before the Court was not one of delay but whether an act of discrimination occurred within the cognisable period. No application for an extension of time was made at first instance or to the Court on appeal.

In his evidence to the Court the Complainant accepted that he received the CPSA’s Report and letter on the 13^thJuly 2016. The final sentence of the report states “In conclusion, the Commission does not consider that PAS acted contrary to the letter or spirit of the Code in not permitting a re-sit on this occasion."

It is the Complainant’s contention that the decision arising from the CPSA report only came into effect when the draft minutes of the meeting relating to the approval of the report were adopted by the Commission which happened on the 19^thDecember 2016 and therefore his claim is in time.

Respondent’s case.

It is the Respondent case that no discrimination occurred and even if it did there is no act of discrimination that falls within the cognisable period. It is their contention that the appeal to CPSA is not part of the process and therefore should not be counted within the timeline. The CPSA is a different body and their function is to ensure PAS operated within the Code of Practise. The Respondent argued that even if the Court was to find against them on this point the last act would have to be the issuing of the report in 13^thJuly 2016 which is outside the time limits. The date of adoption of minutes of a meeting by the Commission has no relevance to this case.

Discussion and Decision.
The Acts state that the Director General shall not entertain a complaint received six months after the date of the contravention to which the complaint relates. The documentation provided to the Court by both parties supports the contention that the contravention being complained of was the decision by the Respondent not to allow the Complainant to re-sit the online test. Notwithstanding, the issue raised by the Respondent in relation to whether or not the CPSA process was an appeal of the decision or a review of the process used, taking this case at its height the last possible act of discrimination that could have occurred was the issuing on the 13^thJuly 2016 of the report by the CPSA which did not find in the Complainant’s favour.

Taking all of the above into consideration it is clear to the Court that the latest date where something occurred that could be considered in the circumstances of this case to be a contravention of the Acts is 13^thJuly 2016.
On that basis the Court finds that the claim is out of time and the decision of the Adjudicator is upheld.
The Court so decides.

Signed on behalf of the Labour Court

Louise O'Donnell
CC______________________
4 December, 2018.Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.