FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : PFIZER IRELAND PHARMACEUTICALS (REPRESENTED BY ROSEMARY MALLON, B.L., INSTRUCTED BY A & L GOODBODY, SOLICITORS) - AND - DYMPNA WHELAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No. ADJ-00015038.
BACKGROUND:
2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on the 19th February 2019. A Labour Court hearing took place on the 4th July 2019. The following is the Court's Determination-:
DETERMINATION:
This is an appeal by Ms Dympna Whelan against the Decision of an Adjudication Officer ADJ-00015038, CA-00019572-001 under the Employment Equality Acts 1998 – 2015 (“the Acts”). The Complainant claimed to have been discriminated against by her employer, Pfizer Ireland Pharmaceuticals, on the grounds of gender and disability contrary to Section 6(2)(a) & (g) of the Acts in relation to access to a promotion.
The Adjudication Officer found that the Complainant’s claim was out of time and he had no jurisdiction to proceed further.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Dympna Whelan will be referred to as “the Complainant” and Pfizer Ireland Pharmaceuticals will be referred to as “the Respondent”.
Mr Barnaba Dorda, SIPTU, represented the Complainant and Ms Rosemary Mallon, B.L., instructed by A&L Goodbody, Solicitors, represented the Respondent. At the appeal hearing before the Court Mr Dorda confirmed that the claim of discrimination on the disability ground was no longer being pursued.
Victimisation Claim
In his submission to the Court, Mr Dorda stated that the Complainant was pursuing a claim of victimisation. However, no such claim had been referred to the Workplace Relations Commission (WRC) and it is clear is that no Decision was given by the Adjudication Officer in ADJ-00015038 CA-00019572-001 which is under appeal.
The Court has appellate jurisdiction only which is founded on a valid Decision of an Adjudication Officer. There being no Decision by an Adjudication Officer under the Acts, the Court has no jurisdiction to consider any complaint grounded under Section 74 of the Acts.
Background
The Complainant commenced employment with the Respondent in or around March 2004. She was employed as a Processing Operator and applied for the advertised position of Team Co-ordinator in September 2014. She was interviewed for the post and on 20thNovember 2014 she was informed that her application was not successful. On 15thJanuary 2015 the Complainant complained to the Respondent that she had been discriminated against on the gender ground.
The Complainant initiated a grievance through the Respondent’s formal grievance procedures. Due to a lengthy absence by the Complainant an investigation into the alleged discrimination complaint did not commence until her return to work in April 2017. The outcome of that investigation was made known to the Complaint on 12thDecember 2017. The investigation report, carried out by an external investigator, found that while there were shortcomings and failings in the Respondent’s procedures, it concluded that no discrimination had occurred. On foot of those findings, the Complainant, by letter dated 26thApril 2018 to the Respondent, sought to be promoted to the position of Team Leader as soon as possible and to be reimbursed for the loss of earnings she had suffered as a direct result of the failure to promote her. This letter was not responded to by the Respondent which instead held a meeting on 13thMay 2018 with the Complainant.
At the meeting between the Complainant and the Respondent on 13thMay 2018, the Complaint informed the Respondent that she would be referring a complaint under the Acts to the WRC. That complaint was referred on 4thJune 2018.
Preliminary Issue – Time Limit
Mr Dorda claimed that the claim was within time as while the decision not to promote the Complainant to the Team Co-ordinator position was initially communicated to her on 20thNovember 2014, she was not informed of the final decision until 12thDecember 2017, which was within the cognisable period. He relied upon the case ofUPC Communications Ireland v Employment Appeals Tribunal and Ann Marie Ryan[2017] IEHC 567 which considered whether or not a claim was referred in time in a claim of unfair dismissal under the Unfair Dismissals Act, 1977. In a judicial review hearing, the High Court examined the facts of that case to determine whether or not the Claimant’s dismissal took effect on the date it was first communicated to her or on the date the appeal process concluded. The High Court upheld the Tribunal’s decision that the Claimant believed that her dismissal was stayed pending the outcome of the appeal process. Mr Dorda contended that given the above case, the investigation report concluded into the Complainant’s allegations was the final decision in relation to the 2014 promotions process and accordingly maintained that her claim was within time.
Mr Dorda also claimed that the Respondent’s lack of response to the Complainant’s letter dated 26thApril 2018 was a further act of discrimination and was within the cognisable period. In any event, he submitted that it demonstrated a continuing policy of discrimination by the Respondent.
Ms Mallon disputed the Complainant’s allegations. She disputed that there were any acts of discrimination within the cognisable period and that the Complainant’s complaint is statute-barred and therefore must fail.
The claim was referred to the Workplace Relations Commission on 4thJune 2018 and thus the cognisable period under Section 77(5) of the Acts runs from 5thDecember 2017 to 4thJune 2017. The Complainant contends that she is entitled to consider the letter she wrote to the Respondent dated 26thApril 2018 as the last act of continuing discrimination.
The Complainant contends that the events prior to the cognisable period of her complaint should be viewed as a continuum of discriminatory events. The Respondent submits that events outside of the cognisable period for the within complaint are out of time.
Ms Mallon disputed the Complainant’s contention that the time for lodging the claim before the WRC could be extended for the purposes of processing an internal grievance. In that regard Ms Mallon relied upon the case ofBrothers of Charity Services Galway v Kieran O’Toole[EDA 177] The Court held:
- “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.”
The Court also held that :-
“it is clear that in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of discrimination (or victimisation) within the time limit. It held that there must be some reality in the claim that acts of discrimination actually occurred within the limitation period. Otherwise a complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”
The Respondent also relied upon the Labour Court determination ofBusiness Mobile Security Ltd t/a Senaca Limited v John McEvoy[EDA 1621]. In that case the Court had to determine when the last act of discrimination by the Respondent against the Complainant occurred. The Complainant alleged that it occurred in August 2012 and was repeated in May 2013 through the refusal of the Respondent to rectify it through the grievance procedure. The Respondent argued that the Complainant should not be permitted to circumvent the time limits set out in the Act by seeking to rely on an internal procedure that did not prevent him from bringing his complaint. The Court held that the claim was statute barred. It held:-
- “The Court has examined the facts of the case as outlined in the submissions of both parties. The Court finds that the last act of discrimination occurred no later than August 2013. Thereafter the Complainant had a choice to make as to whether he would pursue the matter through the statutory remedies available to him or would avail of an internal grievance procedure in an effort to secure a resolution. He chose the latter.
There was a delay in processing the grievance which lasted for more than six months. In the meantime, the Complainant was out of work on sick leave. Again he decided to allow that procedure take its course while time was running under the Act. When the matter was eventually brought to a conclusion under the grievance procedure the time limit for bringing a complaint under the Act had expired.
The Complainant seeks to describe the decision not to uphold his grievance as a further act of discrimination. The Respondent rejects that proposition. ……
The Court has considered the matter and has decided that, in this case, the decision by the Respondent not to uphold the grievance cannot amount to an act of discrimination under the Act.
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.”
Section 77(5) of the Acts provides: -
- (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 Commission 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.
Section 77(6A) provides: -
For the purposes of this section —
- (a) discrimination or victimisation occurs—
- (i) if the act constituting it extends over a period, at the end of the period,
- (a) discrimination or victimisation occurs—
The Court, inCork County VEC v Hurley(EDA 24/2011), considered a contention that events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. The Court in that case decided:-
- ‘that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences where found not to have involved victimisation the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.’
The Court, therefore, consistent with its approach inCork County VEC v Hurley, must first consider whether or not an act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether or not events outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.
Approach of the Court
The Court in the within matter therefore decided to consider first the events submitted by the Complainant to have occurred between the dates of 5thDecember 2017 and 4thJune 2017.
The outcome of the investigation into the Complainant’s complaints of discrimination was issued to the Complainant on 12thDecember 2017. The Court firstly fails to see how the issuing of the report by the Respondent constitutes less favourable treatment of the Complainant on the gender ground. Secondly, the Court cannot accept that the time period encompassed by Section 77 of the Acts can be extended from November 2014 until December 2017 simply due to the processing of an internal grievance. Such processing of procedures did not prevent the Complainant from referring a claim under the Acts to the WRC.
The Court understands that the issue in theUPCcase concerned ambiguity over the date of the dismissal in a case under the Unfair Dismissals Act and the High Court held that in that case that the decision to dismiss was stayed while the appeal process was in being. In the instant case, there is no question that the appointment to the Team Co-ordinator post was stayed pending the processing of the Complainant’s grievance. The decision not to appoint the Complainant to the post was made in November 2014.
The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent her from bringing her complaint within the statutory time limit. In line with its decision inBusiness Mobile Security Ltd t/a Senaca Limitedthe Court does not accept that the internal grievance process can take its course to extend the period for submitting a claim which in any event is limited by Section 77(5)(b) to a period of twelve months from the date of the occurrence of the event giving rise to the claim.
The Complainant gave the date of the most recent occurrence of the discrimination alleged as 30thApril 2018. In doing so she was referring to the letter dated 26thApril 2018 sent by the Complainant to the Respondent seeking to be appointed to a Team Leader role. This she allegesamounts to the final act of discrimination against her and that she is entitled to rely on that act of discrimination to bring the instant proceedings.The Court cannot accept that the sending of this letter and the Respondent’s non-response by 30thApril 2018 constituted an act of discrimination. In any event, no such role was advertised at the time for which the Complainant had applied or was being considered for. Furthermore, the Complainant has not nominated a comparator whom she alleges was treated more favourably than her at this time. The Court cannot accept that the simple writing of a letter and making a request to the Respondent could be deemed an act of discrimination.
Conclusion
Therefore, the Court must conclude that the Complainant has failed to establish primary facts from which it could be inferred that discrimination has occurred during the cognisable period for the complaint. The Complainant has failed to discharge the burden of proof which rests upon her and has failed to establish a prima facie case of discrimination within the cognisable period of the within complaint. In consequence of this conclusion the Court cannot address the contention that events occurring within the cognisable period were part of a continuum of discrimination and as a result the Court does not have jurisdiction to consider the complaints made by the Complainant relating to events outside the period set out in the Acts for the making of a complaint of discrimination. As a consequence, the complaint is statute-barred and the Court cannot proceed to hear the substantive matter.
Determination
The Court determines that the Complainant’s complaint under the Acts is statute-barred. Therefore, the appeal is not allowed and the Decision of the Adjudication Officer is upheld.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
TH______________________
12th July 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.