Complainant

Respondent

Parties

Kristine Kozinceva

Poundland Ltd - Dealz

Representatives

Philip O'Gorman Ibec

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-00026981-001

12/03/2019

The Complainant is employed as a Shop Assistant with the Respondent since 24/11/2014. She works 16 hours per week and is paid €156.80 gross per week. The Complainant was on a period of illness absence prior to her maternity leave commencing in February 2017.

The Complainant submitted her complaint form to the WRC on 12/03/2019. The Complainant alleges that she was discriminated against on the grounds of gender and family status by the Respondent. The Complainant continues on illness absence.

The Complainant alleges that she was discriminated against by the Respondent and at the hearing provided three specific incidents. The first occurred in February 2017 when she asked a manager to sign her Social Welfare form. She alleges that the Manager queried the amounts she was paid by Social Welfare and this caused her great distress. She felt that this was inappropriate. The second occasion was when she submitted her Maternity Leave benefit form to a supervisor. She done this in May 2017 and this form was not submitted to the Social Welfare Dept until May 2018. This resulted in the Complainant not being paid any maternity benefit and putting her at a significant loss. The third instance was that her employment status changed and this came to her attention when Revenue and the Department of Social Protection told her that there was no evidence that she was still an employee of the Respondent. The was paid a lesser amount of benefit due to this.

The Respondent submitted that it was unclear from the WRC Compliant form what the specific alleged act of discrimination was. The Respondent noted that the Complainant failed to provide the necessary basis details to enable it to prepare and submit a defence to any allegations.   The Respondent raised a number of preliminary issues:

(a)    Not clear what the act of discrimination is

(b)    Time limit: The Act provides that a complaint must be referred within six months of the alleged contravention. If it is outside this the Complainant must demonstrate reasonable cause for the delay so that an Adjudication Officer may consider an extension of time up to a maximum of 12 months

(c)     The Complainant has submitted a dual claim – allegations of discrimination under family status and gender. Both of these allegations arise from the same set of facts. The Complainant cannot succeed in making two claims to the WRC under the Employment Equality Acts in respect of the same set of circumstances.

(d)    The burden of proof requires the Claimant in the first instance to present facts from which it can be inferred that she was treated less favourably than another person is.

The Complainant clarified her complaint at the hearing. There were three aspects to her complaint:

(a)    When he submitted her complaint to her manger (Mr A) he queried with her the amount she was being paid and done so in a manner that she found distressing. It is the Complainant’s position that this action constituted discrimination.

The Complainant submitted that her maternity form was not signed until approximately six months after her baby was born. This resulted in a loss to her and while the Maternity Benefit due was backdated it is her position that the delay by the Respondent in doing so constituted discrimination under the provisions of the Employment Equality Acts.

(b)    The Complainant submitted that her employment status changed while she was on Maternity Leave. While dealing with the Dept of Social Protection she was told that she was no longer employed by the Respondent.

The Respondent submitted that the complaint was out of time as the Complainant did not file a complaint with the Workplace Relations Commission within six months of the alleged discriminatory action. The Complaint was submitted on 12/03/2019 and the alleged actions were said to have occurred in February 2017.

Preliminary Matter:

The relevant law:

Section 77 of the Employment Equality Act, as amended, provides, inter alia the following:

“(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 a 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 to the Director General of the Workplace Relations Commission or Circuit Court, as the case may be , 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 a period not exceeding 12 months as is specified in the direction; and, where such a director 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-

discrimination or victimisation occurs- 

if the act constituting it extends over a period, at the end of the period.

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

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

a deliberate omission by a person to do something occurs when the person decides not to do it, and 

a respondent is presumed, unless the contrary is shown, to decide not to do something when the respondent either- 

does an act inconsistent with doing it, or

the period expires during which the respondent might reasonably have been expected to do it.”

The Respondent claims that the Complainant’s case is out of time. The complaint was filed with the Workplace Relations Commission on 12/02/2019.

Having considered the parties evidence and arguments in relation to the preliminary matter raised, I have reviewed with interest the relevant authorities in this area and I have decided that the complaints are statute barred. The reasons being as follows, the alleged events that the Complainant raised are on the basis of events that indeed stretch into the past, some of which go back to 2017 and in their own right are construed as stand-alone incidents and therefore are long outside of the permittable time limit.

The complaints are outside the time limits and therefore are without merit and not well founded.

I find that the Complaint made pursuant to Section 77 of the Employment Equality Act, 1998 is not well founded and the complaint fails.

Maternity benefit.   Discrimination. Burden of Proof