x

Complainant

Respondent

Parties

Dympna Whelan

Pfizer Ireland Pharmaceuticals

Complainant

Respondent

Anonymised Parties

A Processing Operator

A Pharmaceutical Company

Representatives

Barnaba Dorda of SIPTU

Rosemary Mallon BL instructed by of Ian Moore A&L Goodbody

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-00019572-001

04/06/2018

It was accepted that the failure to achieve a Promotion in November 2014 was the initiation factor in this case. The Complainant had raised a complaint with the Respondent at local level in January 2015 and had escalated it to HR Director level by the 4th February 2015. Various communications/e mail between the parties followed. It was proposed and agreed that an independent Investigation take place into the Complaint.

Unfortunately, the Complainant fell unwell and was absent on Sick Absence from August 2015 until April 2017.

On her return the investigation continued and concluded with the Report being issued in late November 2017. The Complainant maintained that she had not actually taken delivery of the Report until later in December – on or about the 12th.

It was the Complainants contention that the publication of the Investigation Report had identified a pattern of considerable Gender Discrimination in the Respondent Organisation. This was ongoing and her unsuccessful application or more properly non-acknowledgement of an application for a Position of Team leader “as soon as possible” in April 2018 was a continuation of the discriminatory practices identified in the Investigation report.

Obviously, the letter of the 26th April 2018 was a required Discriminatory act and well within the six months’ time limit for a WRC claim dated the 4th June 2018.

In addition, the Complainant placed considerable reliance on the High Court decision – UPC Communications Ireland v Employment Appeals Tribunal (Respondent) and Ann Marie Ryan (Notice Party) [2017] IEHC 567 in support of the Argument that the publication of the Investigation report (alleged to have been given to the Complainant on the 12th Dcember2017) was the final link in a “discriminatory chain” and thereby having the claim in time.

The Respondent pointed to the evidence that the Complainants main issue was the non-promotion in November 2014

The claim under the Employment Equality Act 1998 had been lodged at the WRC on the 4th June 2018 – in the required preceding six-month period back to 5th December 2017 no valid evidence of any Discrimination was presented.

The Employment Equality Act was clear cut in Section 77 regarding time limits and the Complainant had failed to properly observe these. There was no getting around this fact.

A considerable body of Legal and Labour Court/EAT precedents in support of their argument was proffered in support.

5:1       Discussion of Relevant Law.

In the question of Statutory time limits in Employment cases there is a considerable body of precedent. Guidance on principles of general application can be sought from a number of key decisions of the Labour Court, albeit sometimes under the Unfair Dismissals Act, 1977.

The test for deciding if reasonable cause for a delay in making a Claim is shown for the purpose of Section 27(5) of the Unfair Dismissals Act, 1977 Act (extending time limits) was considered by the Court in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll Labour Court Determination WTC0338 (October 28, 2003).

Here the Court said: -

"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. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.”

These are principles of general application and can be taken as good guidelines in Employment Equality cases.

However, all cases have to rest on their own facts and evidence and I will review these below in so far as they relate to the time issue only.

5:2       Consideration of the Evidence and Arguments.

5:2:1 The date of Discrimination and the lodging of the claim.

Carefully reviewing the evidence presented, both oral and written, it was clear that the key issue was the Non- Promotion in November 2014. It clearly initiated the first complaint by the Complainant against the Respondent in January and February 2015.

Taking a most generous interpretation, the Complainant had the initial six months (to end of May 2015) and by further application the end of November 2015 to lodge a claim to the WRC.   While a policy not greatly approved of by the WRC the claim could have been lodged in a “Holding Capacity” especially when the Complainant had the misfortune to fall unwell in August 2015.

The Labour Court in   EDA 1621 of July 2016 was quite direct in their comments on a time limits issue that had some parallels to the present case.

“The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.

The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.”.

Likewise, in EDA 177 of 2017 the Court stated, following extensive Legal arguments and a review of case law quoted in the Determination, that

The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts. Section 77 of the Acts, is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the Workplace Relations Commission, such a complaint should be in writing and submitted within the time limits provided for in Section 77 (5).

5:2:2     The date of publication of the Investigation Report as a legitimate cause for a delay in lodging the claim.

In considering the Complainants main Argument regarding the date of Issue of the Investigation Report in November 2017 as being a “trigger issue” and thereby bring the claim within time reference must be made to Section 16-57 of Employment Equality Law by Bolger, Bruton and Kimber Round Hall 2012 where the cases of Reynolds v Limerick City Council DEC-E2003-032 and the High Court case of Minister for Finance v C&PSU [2007] ELR.36 are considered.

“The reason for the delay proffered by the applicant in the Limerick case for an extension of time must also be an understandable one which conforms to reason. This was not found in Reynolds v Limerick City Council, where the reason for delay in submitting the application was due to the applicant attempting to obtain further information prior to referring her complaint. The Tribunal found that this did not prevent the lodging of the claim within the six-month time period and therefore refused the extension of time application as the delay was not excusable.”

P763 Section 16-57

The Authors continue that this case this case remains good law in light of the High Court judgment by Laffoy.J in Minister for Finance v Civil and Public Service Union referred to above.

Laffoy.J J. concluded that:

“Although not directly in point here, the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in a medical negligence case, Hegarty v. O'Loughran[1990]1 IR 148 which is referred to in the judgment of Morris J. in McDonald v. McBane.[1991]1 IR 148 … Further, under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of a claimant … does not prevent a statutory limitation period from starting to run.”

5:2:3     Case law referred to by the Complainant.

On consideration of the case heavily relied upon in the Complainant’ submission -UPC Communications Ireland v Employment Appeals Tribunal (Respondent) and Ann Marie Ryan (Notice Party) [2017] IEHC 567 I found that this case really centred on the effective date of a Dismissal and was not persuasively comparable to the Discrimination case here.

5:2:4     Alleged Misguided reliance on Internal procedures.

Regarding the Complainant argument that they were in some way mislead by the Respondent into placing too great a reliance on internal procedures I found hard to sustain. The Complainant had in early 2015 flagged the possibility of a WRC referral. The Complainant, in her Written and Oral evidence, was a person of considerable intellectual substance, a University Degree holder, and in my view quite capable of understanding her legal situation.

5:3     Final Summary and conclusion.

Accordingly, and in final summary I had to come to the conclusion that the key act of alleged Discrimination was the non-promotion allegation in November 2014 and the failure to lodge the claim within either six or on special appeal within twelve months of this date has rendered the claim out of time.

There were no “Cogent Reasons “or “Reasonable Cause” identified as to why the claim could not have been lodged, even in a “Holding” capacity in time.

I did not see required evidence to sustain a “Chain of Discrimination” that would justify delaying a claim until June 2018.

The claim is out of time and I have no jurisdiction to proceed further.

Act

Complaint/Dispute Reference No.

Summary Decision on Preliminary issue.

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

CA-00019572-001

Claim is out of time and I cannot proceed further.