Complainant

Respondent

Parties

Breda Rafter

Department of Public Expenditure and Reform

Representatives

Michael Hegarty, Reddy Charlton Solicitors

Grainne Gilmore, BL, instructed by the Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00016142-001

05/12/2017

The Complainant is an Assistant Principal Officer Higher (AP Higher) in the Department of Public Expenditure and Reform (DPER). She is 58 years old. She has been seeking promotion to Principal Officer Higher (PO Higher) in the civil service since 2010. The Complainant claims that the Respondent, DPER, discriminated against her on the grounds of gender and age, contrary to Sections 6(2)(a) and 6(2)(f) of the Employment Equality Acts, 1998 to 2015 (the Acts) in terms of discrimination in relation to promotion. At the hearing, the Complainant amended the list of competitions she has referred to in her complaint form and limited her complaint to two competitions, namely:

·         Interdepartmental Competition for appointment to PO Higher in the Departments of the Taoiseach, Finance and Public Expenditure and Reform. DPER Circular 13/2017 following on from the Senior Management Opportunities 2017 (PO 2017). Decision issued on 13th October 2017;

·         Confined PO Higher Competition in DPER, HR Notice 10/2016. Decision issued on 8th February 2017.

The Respondent submits that the Interdepartmental Competition for appointment to PO Higher in the Departments of the Taoiseach, Finance and Public Expenditure and Reform is the sole responsibility of the Public Appointments Service (PAS) rather than the Respondent. The PAS is a statutory body whose role and functions are entirely separate to that of the Respondent. In the case of open competitions candidates apply directly to PAS. PAS conduct all tests and communicate with candidates. The only time that PAS might contact the Department of a candidate on a panel would be then the candidate is next in line and under consideration for assignment. The Respondent was not contacted by PAS in respect of the Complainant in either of the two PAS competitions.

Confined internal competitions are solely managed by DPER. The only interaction with PAS might occur when DPER uses their offices to conduct interviews. All decisions are taken by the selection board members and it is DPER which provides detailed briefings to all selections boards. All communication with candidates comes from DPER.

The Respondent in the instant case did not and could not have had any involvement in that recruitment process of open competitions operated by the PAS. The Respondent notes that the eligibility criteria for the competition in question were set out as being limited to “…existing civil servants at the grade of Principal Officer and equivalent, and to the top ranked sixty candidates in the Open Principal Officer competition.” The Complainant was not successful in the Competition for Senior Management Opportunities (Principal Officer 2017) and she was not eligible for the Interdepartmental PO (Higher) Competition. Importantly, neither of these two competitions were the responsibility of the Respondent.

The Complainant’s solicitor submits that the Interdepartmental Competition for appointment to Principal Officer (Higher) in the Departments of the Taoiseach, Finance and Public Expenditure and Reform was advertised in conjunction with the open Principal Officer 2017 (Standard scale) competition. Eligibility for the Principal Officer Higher competition was limited to existing civil servants at the grade of Principal Officer and equivalent, and to the top ranked sixty candidates in the Open Principal Officer 2017 competition.

The Circular states as follows:

“4. Candidates must:

a) Be a currently serving Principal Officer Standard or equivalent grade with not less than two years’ service in the Civil Service before the closing date of 13 July, 2017. Unestablished officers and officers serving in an acting capacity in the eligible grades may compete in the competition provided they fulfil the eligibility requirements set out above, or

b) Be among the top ranked sixty candidates in the Principal Officer Standard competition

…”

As the Complainant failed to meet the qualifying standard in the Principal Officer 2017 competition she was prevented from applying for this competition. The Complainant alleges that the Principal Officer 2017 competition was biased and, in turn, by including the eligibility criterion related to the top sixty candidates in this competition into the Interdepartmental Competition, the latter resulted in being skewed. She submits that the Circular 13/2017 in respect of the Interdepartmental Competition was created by DPER and therefore, DPER set out the rules and requirements in respect of the competition. Consequently, DPER holds responsibility for any discriminatory aspect of the competition ran as per the Circular.

I note that the Complainant alleges discrimination in respect of two competitions:

·         Interdepartmental Competition for appointment to PO Higher in the Departments of the Taoiseach, Finance and Public Expenditure and Reform. DPER Circular 13/2017 following on from the Senior Management Opportunities 2017 (PO 2017). Decision issued on 13th October 2017;

·         Confined PO Higher Competition in DPER, HR Notice 10/2016. Decision issued on 8th February 2017.

There is no dispute between the parties that DPER managed and holds responsibility for the Confined PO competition. However, the parties’ views differ in respect of the Interdepartmental PO Higher Competition. The Respondent strenuously denies it had any involvement in this competition. It was confirmed by the parties that the Interdepartmental Competition for appointment to PO Higher in the Departments of the Taoiseach, Finance and Public Expenditure and Reform was announced in conjunction with the Senior Management Opportunities (Principal Officer 2017) one. Both competitions were run by the Public Appointments Service.   I note the Complainant assertion that DPER issued the circular in respect of the competition and is, therefore, responsible for any discriminatory provisions within the document. The Complainant submits that the insertion of the requirement in terms of eligibility, as quoted above amounts to discrimination, as alleged by the Complainant and is the responsibility of DPER. The Complainant did not provide any evidence to support her proposition that the eligibility criteria specified in the Circular are discriminatory. I cannot accept this proposition. I note the Complainants concerns in respect of the running of the Principal Officer 2017 competition. However, both competitions in their entirety were managed by the PAS and therefore DPER would have no input in any aspect of the process. Neither could DPER have known the outcome of the Principal Officer 2017 competition in order to insert the eligibility criteria to suit certain candidates or prevent other candidates form being eligible to apply for the Interdepartmental Competition.

For the reasons outlined above, I find that the DPER is not the correct respondent in respect of the Interdepartmental Competition for appointment to PO Higher in the Departments of the Taoiseach, Finance and Public Expenditure and Reform. Consequently, the only competition DPER can be held responsible for is the Confined PO Higher Competition.

Counsel for the Respondent raised a preliminary objection in relation to this complaint being out of time. The Respondent submits that the complaint should be dismissed on grounds of delay and that the Complainant incorrectly identifies 13th October 2017 as the most recent date of alleged discrimination. The appointment process for the Interdepartmental Competition for appointment to PO Higher in the Departments of Taoiseach, Finance and Public Expenditure and Reform (Circular 13/2017), which resulted in a decision dated 13th October 2017 is not the responsibility of the Respondent and is the subject of a separate complaint against a different Respondent. The Respondent in the instant case did not and could not have had any involvement in that recruitment process of open competition operated by the Public Appointments Service.   It is submitted that any claim against the Respondent falls outside the statutory time limit.

The Complainant acknowledges that the claim in respect of the Confined PO Higher Competition in DPER, HR Notice 10/2016 (Decision issued on 8th February 2017) falls outside the time limit provided in the legislation. However, the Complainant argues that, although the Interdepartmental Competition for PO (Higher) in the Departments of the Taoiseach, Finance and Public Expenditure and Reform was carried out by the Public Appointments Service it is DPER that set out the requirements for the competition and therefore, DPER is responsible for any discrimination resulting from the Circular and the competition itself, as outlined above. In the event that this competition is held not to be a responsibility of DPER, at the hearing, the Complainant made an application for extension of the time limit due to a reasonable cause. The Complainant submits that at the material time her father in law was diagnosed with motor neuron disease at an advanced stage. The Complainant submits that at the material time she was working full-time in a successful and demanding Assistant Principal role. In addition, she was studying part-time (two nights a week), she was preparing for exams and she completed her Masters degree. In addition to caring for her mother she was now also required to care for her father in law. Sadly, he passed away in November 2017 and the Complainant proceeded with seeking legal advice and submitted the WRC complaint immediately thereafter on 5th December 2017. The Complainant submits that it does not prejudice the Respondent in any way if an extension is granted.

I have carefully considered the request submitted to extend the statutory time limit in this case. As an Adjudicator, I am bound to work within the statutory time limits pertaining to Section 77(5) of the Employment Equality Act, 1998, as amended. Section 77(5) of the Employment Equality Act, 1998, as amended stipulates:

(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 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.

The relevant initiating complaint form was received by the Director General of the Workplace Relations Commission on 5th December 2017. The six-month time limit within which the initiating complaint should have been referred to the Workplace Relations Commission expired, at the latest, on 7th August 2017. The Complainant, therefore, lodged her complaint out of time. Section 77(5)(b) of the Act provides, in effect, that the time for presenting a claim under the Act may be extended for reasonable cause shown for a further period of six-month but not exceeding 12 months from the date of the occurrence of the event giving rise to the claim. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Adjudication Officer in each individual case.

The jurisprudence in respect of the concept of ‘reasonable cause’ is summarised in Salesforce.com v Alli Leech EDA1615 wherein the Labour Court stated:

·         “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -

Ø  It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36.

The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello Costello J. (as he then was) stated as follows:

Ø  The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.

It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

The Complainant advised the hearing that while she was doing her best in both in her professional and personal life, due to a number of circumstances she was unable to submit her complaint form within a period of six months. These circumstances included the fact that, at the material time, her father in law was diagnosed with an advanced stage of the motor neuron disease. The Complainant was caring for him during his illness. Sadly, he passed away in November 2017. The Complainant sought legal advice without any further delay and submitted her complaint form on 5th December 2017. The Complainant stated that, at the material time she was working in a full-time, demanding and responsible role. The Complainant’s representative emphasized that the Complainant is highly qualified professional. She is, inter alia, a Chartered Management Accountant (CIMA) and a Global Management Accountant (CGMA). She is head of the Government Accounting Unit. She represents Ireland at the EU level. She holds a Bachelor of Business Studies Degree. At the material time she was also studying part-time, attending lectures two nights a week, sitting exams in May 2017 and she successfully completed her Master of Arts in Public Management Degree. The Complainant’s submission shows also that she completed Diploma in Corporate Governance Level 9 (Masters Level) in which she received a distinction in June 2017. The Complainant also participated in the Senior Management Opportunities 2017 (Principal Officer 2017) competition. Following unsuccessful result in this competition, the Complainant entered into correspondence with PAS at the end of October 2017 seeking firstly an informal review and then a formal review under Section 7 of the Commission for Public Service Appointments Code of Practice for Appointment to Position in the Civil Service and Public Service. She also made a Freedom of Information request for the original scripts and notes and marking sheets.

I accept that the advancing illness of the Complainant’s father in law and care requirements associated with the illness could have a detrimental effect on the Complainant’s ability to manage her responsibilities and ‘to do’ tasks.   However, the list of successfully dealt with responsibilities and achievements presented by the Complainant suggests that it did not do so to the extent that would have prevented her from submitting the WRC complaint form. The Complainant is a highly qualified professional and her submission demonstrates that on a daily basis she is dealing with matters much more complex than the WRC Complaint Form. For all of the reasons referred to herein and based on the evidence before me, I have concluded that the Complainant has failed to establish a causal connection between the factors relied upon by her and the delay in presenting the within claim. Accordingly, I must hold that the Complainant has failed to adequately explain the delay and provide a reasonable cause for the delay.

Having carefully considered all evidence available to me I find that the Complainant has failed to submit her complaint within the required time limit. I find that the claim is statute barred and I lack the jurisdiction to hear the case.

Time limit, correct respondent