Complainant

Respondent

Anonymised Parties

An Administration Co-ordinator

A Health Care Provider

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-00019051-001

09/05/2018

The complainant has been employed by the Respondent since 2000. The complaint relates to discrimination on the Gender ground, Victimisation, Harassment and Sexual Harassment. The complaint was submitted to the Workplace Relations Commission on 9^th May 2018.

Naming of the Parties

While it is the policy of the WRC to name the parties to complaints under Employment Equality legislation, I have decided, given the sensitive nature of the complaint, to use my discretion and anonymise the parties in this decision.

The complainant outlined a number of incidents of inappropriate behaviour that she was subjected to by a colleague throughout 2014. Although the respondent was made aware of the incidents at the time, the issues were dealt with by the complainant without formally invoking a grievance procedure.

The complainant stated that after approximately two years, the inappropriate behaviour re-commenced in Mid-2016 and a formal complaint was raised in January 2017. The complainant stated that the internal investigation process had not been completed by the time the complaint was referred to the Workplace Relations Commission (WRC) on 9^th May 2018. The complainant stated that the respondent’s failure to adequately investigate her complaints in a timely manner constituted ongoing discrimination and harassment. The complainant cited the Labour Court Determination in Hurley V Co Cork VEC (EDA1124) in support of her position.

The complainant also stated that an incident took place on 10^th November 2017, where the alleged perpetrator of the harassment removed paperwork from the back of a delivery truck which had the effect of compromising the complainant’s work practices and thereby constituted an act of discrimination/harassment.

The complainant stated that the respondent failed in its duty of care to her as an employee, by not proactively managing the situation since the events of 2014 and thereby allowing her to be subject to the same behaviour again in 2016. The complainant cited the case of A Boy’s Secondary School v A Female Teacher of Religion EED022 in support of her position in that regard.

The complainant contends that having made the complaint in January 2017 she was subject to adverse treatment as, in an attempt to avoid the alleged perpetrator, she was alone at break/lunch times in a substandard canteen and had to use a different bathroom that was also used by men. The complainant stated that this constituted victimisation as a result of her having made the complaint in January 2017. The complainant cited the Labour Court Determination, Watters Garden World Ltd v Panuta (EDA099) which stated that:

“Victimisation should be construed as widely and liberally as can fairly be done and should be given a sufficiently wide ambit so as to encompass all forms of detriment inflicted on a worker by his or her employer for having committed a protected act.”

The complainant is seeking that a policy be put in place to support those who have been treated in the same manner, that harassment training be provided to all staff, that there be a written apology from the perpetrator of the harassment and that she be compensated for the failings of the respondent in its handling of the entire situation.

The respondent stated that it was aware of the events that occurred in 2014. However, the complainant declined any intervention by management at the time, instead opting to manage the situation herself.

The respondent submits that, on receipt of the complaints in January 2017, it arranged meetings with both parties to reach agreement on the appointment of investigators and on terms of reference for an investigation. The respondent confirmed that investigation interviews commenced in August 2017. The respondent accepts that delays occurred due to the absence of one investigator for three weeks in July 2017 and on the basis that each of the investigators were absent in December 2017 and January 2018 respectively. The respondent stated that a draft report was circulated for consideration by the parties in March 2018 and that the complainant sought an extension of time to consider its findings. The final report issued on 15^th May 2018 and a disciplinary hearing was held on 18^th July 2018. The respondent stated that the complainant’s colleague was given a written warning to be placed on his personnel file for nine months and was advised in relation to adhering to the relevant policies concerning Dignity at Work etc.

The respondent stated that it processed the complaint as expeditiously as possible and commenced a disciplinary process once an Investigation Report was received in May 2018. The respondent also confirmed that it provided and paid for professional counselling for the complainant during the process.

The respondent’s position is that it acted appropriately and effectively in dealing with the complaint and refutes the allegations of discrimination, harassment, sexual harassment and victimisation.

The Applicable Law – Time Limits

Sections 77(5) and 77(6) A of the Employment Equality Act, 1998 to 2015 state as follows:

77(5) (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 Commissionor 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.

(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a)shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant’s notice.

(6A) 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,

(ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and

(iii) if it arises by virtue of a provision which operates over a period, throughout the period,

The complaint was submitted on the 9^th May 2018. The cognisable period of the complaint is therefore from 10^th November 2017 to 9^th May 2018. The complainant stated that on 10^th November 2017, an alleged act of discrimination/harassment occurred when the alleged perpetrator removed paperwork from a van that was meant for the complainant and left it on a pillar. The complainant asserts that this was an act of discrimination/harassment within the cognisable period of the complaint which in turn allows consideration of matters outside of the cognisable period in establishing a continuum of discrimination/harassment.

This was confirmed in Labour Court Determination EDA 179 Dunnes Stores v Breda Mulholland which states as follows:

“It is settled law that in order for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of a complaint”.

The Court also stated that:

“Only if such acts of discrimination are found to have occurred in that period, can the Court consider whether Acts outside the cognisable period can be considered as part of a continuum of discrimination.

While, I accept the incident of 10^th November 2017 occurred, there is no evidence to suggest that it was done deliberately. Having considered the issue, I am not satisfied that the events of 10^th November 2017 constitute an act of discrimination/harassment.

Internal Grievance

The complainant lodged an internal grievance on 4^th January 2017 in relation to events that had occurred in 2016. While the complainant stated that the last date of discrimination was on 10th November 2017, the complainant also submits that the respondent’s ongoing failures with respect to the investigation process constitute a continuum of discrimination for the purpose of the meeting the statutory time limit for the referral of the complaint. For its part, the respondent outlined the timeframe for the internal grievance process and while it was significantly delayed for various reasons, the complainant could have also lodged a complaint to the WRC in January 2017. She did not do so.

On this issue, I note Labour Court Determination EDA177 Brothers of Charity Services Galway v Kieran O’Toole where the Court held 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 limits provided under the Act.

Section 77 of the Act is very clear, it specifies that a person who claims to have been discriminated against may seek redress by referring the case to the WRC such a complaint should be in writing and submitted within the time limits provided for in Section 77(5).”

I also note Labour Court Determination No: EDA1621 Business Mobile Security Services Ltd T/A Seneca Ltd v John McEvoy in relation to utilising internal grievance procedures.

Conclusion

In all of the circumstances of this complaint, I do not find that there were incidents of discrimination/harassment within the cognisable period of the complaint. Accordingly, I conclude that the complaint is out of time.

Having considered the submissions of both parties, and all of the evidence adduced at the hearing of this complaint, I declare that the complaint is out of time and is therefore statute barred.