FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : PFIZER IRELAND PHARMACEUTICALS (REPRESENTED ROSEMARY MALLON, B.L., INSTRUCTED BY A.&L. GOODBODY, SOLICITORS) - AND - BRENDAN CLEMENGER DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision Nos: ADJ-00008926 and CA-00011806-001.
BACKGROUND:
2. The Employee 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 30 August 2018. The following is the Determination of the Court:-
DETERMINATION:
Introduction
This is an appeal by Brendan Clemenger the Complainant against Adjudication Officer Decision ADJ-00008926 in a claim of discrimination on the ground of disability. The complaint was made pursuant to the Employment Equality Acts 1998-2015 (the Acts).
The Adjudication Officer found that the claim was made more than six months outside of the last date of alleged discrimination and therefore is out of time in accordance with section 77(5) of the Acts.
Background
The Complainant has been employed by the Respondent since November 2002 and is currently employed as a Quality Analyst. The Complainant was on sick leave from the 25thApril 2016 to 17thOctober 2016 during which in accordance with the Company’s sick leave policy he received full pay for seventeen weeks and then moved to 66% of normal pay. While the Company sick leave policy allows for up to twelve weeks' full pay in a rolling twelve-month period the Respondent utilised the discretion that the policy affords them and paid the Complainant full pay for seventeen weeks.
In accordance with the Complainant’s and the Company’s Medical Practitioners’ advices the Complainant’s return to work was phased. Initially he was working four hours a week. The Respondent paid the Complainant 66% of his salary for a period of time when the Complainant was working less than 66% of his contractual hours. When the Complainant was able to work 66% or more of his contractual hours he was paid 100% of his salary. It is the Complainant’s position that he should have been paid 100% of his salary from the time he returned to work regardless of the number of hours he worked and the decision by the Respondent not to do so was discrimination on the ground of disability.
The Complainant’s complaint was received by the WRC on 1st June 2017.
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(5) of the Act states:
- (a)Subject to subsection (6) , 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.
Complainant’s case
It is the Complainant’s case that the Respondent has in the past paid 100% salary to employees returning from sick leave and that he is aware of a number of people who have benefited from this. He himself had, following a previous sick absence, returned to work on a phased basis and been paid full salary.It is his contention that he was discriminated against based on his disability. While the Complainant accepts that he did not formally put the Respondent on notice of his disability it is his contention that the Respondent knew of his illness.
In relation to the time limits argument the Complainant does not dispute that he was notified in August that his salary would be reduced, again in October when he commenced his phased return to work and once again in November by email.
He does not dispute the fact that the decision to pay him 66% of his salary as he was working less than 66% of his contractual hours was made at that time and communicated to him. Nor does he dispute the fact that increasing his working hours to full hours was done on medical advice rather than at the discretion of the Respondent.
The Complainant accepts that once his actual hours worked increased to 66% of contractual hours he was paid 100% of his salary. However, it is his contention that the payment to him in October, November, December and January of 66 % of his salary while he was working less than 66% of his contractual hours were all separate acts of discrimination and that the last payment in January 2017 fell within the six-month time period.
Respondent’s case
It is the Respondent’s position that the claim is out of time. The Respondent contends that the Complainant was fully aware of the pay issue arising in relation to his return to work when he was notified of same in October 2016 and he engaged with the Respondent in relation to this. Following on from a meeting with the Complainant the Respondent emailed him confirming the position in relation to his pay. On 15thNovember 2016 the Complainant wrote to the Respondent requesting that the decision to pay him less than 100% salary while he was working reduced hours be deferred. There followed several emails in which the Complainant was advised he could make a complaint under the grievance procedure but he declined to do so opting instead to make a complaint to the Corporate Compliance group. The role of Corporate Compliance is to ensure that the Respondent’s policies were followed rather than to look at the merits of an individual case. In an email of 15thFebruary 2017 the Complainant made it clear that he had no intention of using the internal grievance procedure. It is clear that from the time of his return to work in October 2016 the Complainant was aware of the Respondent’s position in relation to his return-to-work salary.The Complainant chose not to utilise the Respondent’s grievance procedure to address his concerns. At no time did the Complainant indicate that he had a disability or that he felt in any way that he was being discriminated against based on a disability. While the Respondent has on a limited number of occasions exercised its discretion and allowed employees a phased return to work on full salary in the main staff are treated in the same manner as the Complainant. It is the Respondent’s position that there was no discrimination and that the Complainant’s case is out of time. The decision to place the Complainant on a rate of 66% salary on his return to work on reduced hours was taken in October 2016 and restated in November 2016.
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 pay the Complainant 100% salary on his return to work on reduced hours. This decision was taken in October 2016 and restated to the Complainant at a meeting in November 2016 and followed up by an email on 3rdNovember 2016 confirming the contents of the meeting. The Complainant does not dispute that he declined to process his grievance through the Respondent’s grievance procedure. The Complainant confirmed to the Court that he was aware that the role of the Corporate Compliance group was to ensure compliance with policies at a site level rather than deal with individual issues. 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 3rd November 2016 when the Complainant received an email confirming what the salary arrangements would be. On that basis the Court finds that the claim is out of time and the Decision of the Adjudication Officer is upheld.
The Court so decides.
Signed on behalf of the Labour Court
12 September 2018______________________
JDLouise O'Donnell
Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.