EDA1920

This case is an appeal of a decision by an Adjudication Officer, (AO), of the Workplace Relations Commission, (WRC), that Mr. Melia, ‘the Complainant’, submitted a complaint under the Employment Equality Acts 1977-2015 ('' the Acts'') outside of the 6 months’ time limit provided for in s. 77(5)(a) and failed to show ‘reasonable cause’ as provided for in s.77(5)(b) as to why this time limit should be extended to 12 months.

The Complainant is a serving member of An Garda Siochana, ‘the Respondent’, working as an ICT specialist. His complaint is that he was discriminated against on age grounds in a promotion competition, the results of which were communicated to him on 8 March 2017. The AO decided that this meant that the cognisable period of 6 months under the Acts was the period from 8 March 2017 up to 7 September 2017. Reference was made to an erroneous complaint submitted to the WRC on 2 October 2017 and the formal complaint form was received by the WRC on 23 November 2017.

The AO found that the erroneous complaint date was moot as it was still outside the 6 months’ limit.

The AO decided that no reasonable cause was made out by the Complainant to justify extending the time limit from 6 to 12 months.

The Complainant appealed this finding.

The Court arranged a hearing to deal solely with the question of time limits.

Complainant’s arguments

1 The first appointment from the relevant competition was made on 6 June 2017. As the competition concludes only with appointments, the cognisable period should commence on that date.

2 The Complainant wrote to the Equality Officer of An Garda Siochana on 17 April 2017. He received a reply on 25 May 2017 stating that the issue was outside of the remit of the Equality Officer and that his correspondence was being passed on to Civilian HR. The Complainant never received a substantive reply. He believed that, in accordance with the Garda code, he was required to seek to resolve the matter internally before undertaking any external process.

3 In the case ofCork County VEC v. Hurley (EDA 24/2011)it was found that discriminatory occurrences that were ongoing were part of a continuum and could fall within the jurisdiction of the Court even if the particular occurrences were outside the cognisable period. This is applicable to this case as the underlying policy behind the competitions is still in place.

Respondent’s arguments

1 The Complainant’s claim is that the competition in question was discriminatory. He was notified of the results on 8 March 2017. The cognisable period started on that date. The date of actual appointments is irrelevant.

2 The Respondent’s Equality Officer told the Complainant on 25 May 2017 that the issue was outside of their remit. From that point on, there was no reason for the Complainant not to lodge his claim.

3 There is no substantial evidence offered of a discriminatory policy underlying the competitions in the area concerned. This has the status of mere assertion.

The Law

(5) (a) Subject toparagraph (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 complainantparagraph (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

Deliberation

The Court considered each of the three arguments put forward by the Complainant.

The Court agrees with the point made for the Respondent that this is a complaint about an alleged discrimination in a particular competition. The results of that competition were made known to the Complainant on 8 March 2017. The cognisable period starts from that notification. The pace at which successful candidates were or were not appointed has no bearing on the point at issue.

The Court sympathises with the Complainant if he did not receive a substantive reply from his employer. However, the Acts are very clear in that an extension of the 6 months’ limit to 12 months can only be granted if the Complainant shows reasonable cause for the delay. As the Court set out inCementation Skanska v Carroll EDA 1615in assessing if reasonable cause can be claimed for the delay, it is necessary to consider if the reasons offered both explain the delay and afford an excuse for it. In the instant case, delays in receiving replies to queries or complaints cannot be said to afford an excuse for delay. At all times it was open to the Complainant to refer a complaint to the WRC. As the Court observed inCementation,it is necessary for the Complainant to satisfy the Court that, as a matter of probability, had the correspondence been completed, he would have submitted the claim on time. The Court is not so satisfied.

The citing of theHurleycase by the Complainant shows a lack of clear understanding of the finding in that case, which is perhaps understandable. In that case it was determined that occurrences outside of the cognisable period could be heard by the Court to determine if they were part of a continuum or a regime of discrimination, as he correctly points out, but, crucially, this can only arise if an act or acts of discrimination occurred within the cognisable period. The Court is clear that the cognisable period is the 6 months from 8 March 2017 to 7 September 2017. The Court has not been shown reasonable cause to extend this to 12 months from 8 March 2018. No claim of discrimination under the terms of the Acts was lodged in the cognisable period. Therefore, the Court is unable to deal with any alleged occurrences outside of that period.

Determination

The Court upholds the decision of the AO that a complaint under the Employment Equality acts was not submitted within the required time limits.

Signed on behalf of the Labour Court



Tom Geraghty
MK______________________
14 June 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.