Complainant

Respondent

Anonymised Parties

 A Lecturer

 An Institute of Technology

Representatives

Sarah-Jane Hillery B.L. instructed by O'Mara Geraghty McCourt Solicitors

Lauren Tennyson B.L. instructed by Beauchamps Solicitors

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-00021412-001

28/08/2018

This complaint was submitted to the Workplace Relations Commission (WRC) on 28th August 2018 and relates to alleged acts of Discrimination on the Gender, Age and Family Status grounds. The complaint also alleges that the complainant was discriminated against in her conditions of employment and “other” and that she was subject to a discriminatory dismissal in relation to her compulsory retirement at 65 years of age on 31st August 2017.

The same issues as included in this complaint were also the subject of a separate complaint submitted to the WRC on 26th February 2018 (ADJ000-13464 refers). The discriminatory dismissal element of that complaint was deemed to have been withdrawn in line with Section 101(4A) (a) of the Employment Equality Act, 1998 when the complainant’s previous Solicitor failed to elect between a complaint of Unfair Dismissal under the Unfair Dismissal Act, 1977 or a complaint of Discriminatory Dismissal in line with the provisions of the Employment Equality Act, 1998. All other elements of that referral are considered in the Decisions and Recommendations pertaining to that complaint.

The respondent raised a number of preliminary points in relation to the within complaint. Firstly, the respondent stated that all elements of the complaint (excluding discriminatory dismissal) have been addressed in Adjudication Reference Number ADJ000-13464 and are therefore “res judicata”. Secondly, the respondent stated that the within complaints are out of time on the basis that the complainant’s employment ended on 31st August 2017 and the complaints were submitted on 28th August 2018 which is outside of the statutory six-month period. The respondent does not accept that the complainant has met the “reasonable cause” test which would justify an extension of time. Furthermore, the respondent contends that the Adjudication Officer does not have jurisdiction to hear the discriminatory dismissal complaint as the complainant did not elect between the Unfair Dismissal complaint associated with ADJ000-13464 or the discriminatory dismissal element of the within complaint when requested to do so by letter from the WRC dated 13th November 2018. The respondent contends that the discriminatory dismissal element of this complaint is also deemed to have been withdrawn in line with the provisions of Section 101(4A) (a) of the Employment Equality Act, 1998.

The respondent cited the cases of Picciau v Salthill Court Hotel Ltd DEC-E2013-147, Henderson v Henderson 3 Hare 100, 67 ER 313, Iarnrod Eireann V Lynch UDD1825, An employee v An Employer, ADJ-0001568 and Hewlett Packard Ireland Ltd v Zajaczkowski DWT 191 in support of its preliminary points.

The complainant’s representative stated that it was always the complainant’s intention to pursue a complaint of discriminatory dismissal rather than a complaint of unfair dismissal. The complainant stated that in relation to the discriminatory dismissal element of Adjudication Reference No ADJ000-13464, it was her previous solicitor who did not elect between complaints when requested to do so. The complainant stated that it was through no fault of her own that her discriminatory dismissal complaint was deemed to have been withdrawn. The complainant stated that she then submitted a new complaint on 28th August 2018 (ADJ000-17345) outside of the statutory six-month period but within twelve months from the date of the last act of discrimination. The complainant contends that she satisfies the test for reasonable cause on the basis of the actions of her previous solicitor and is seeking an extension of time in relation to her complaint.

The complainant further outlined a number of issues relating to the within complaint and Adjudication reference ADJ000-13464 in terms of the confusion that arose concerning the complaints of discriminatory dismissal. The complainant’s representative outlined issues of cross correspondence between complaints as well as correspondence that was mistakenly sent to the complainants previous Solicitors. The complainant also stated that she did not elect discriminatory dismissal in relation to the second complaint on the basis that correspondence was received from the WRC dated 28th September 2018 in relation to the first complaint (ADJ000-13464) which indicated that the discriminatory dismissal element of that complaint was still live. The complainant further outlined that no correspondence issued from the WRC in relation to the within complaint of discriminatory dismissal having been deemed withdrawn.

Legal Submissions

Principles of Equivalence and Effectiveness

Counsel for the complainant submits that the parallel claims procedure is in breach of the EU Law principles of equivalence and effectiveness on the basis that by failing to elect between a claim of discriminatory dismissal under EU Law or a Domestic Law remedy of Unfair Dismissal within 42 days, the Domestic Law remedy is given precedence and the complainant is deprived the opportunity to vindicate her rights under EU Law.

Counsel citied the case of Danqua v Minister for Justice and Equality (No.2) [2017] IECA 20 at paragraph 3 which states as follows:

“The twin principles of equivalence and effectiveness are fundamental principles of EU law which serve to act as a break on the national procedural autonomy which Union law accords to national legal systems. The principle of equivalence requires that a national rule be applied without distinction to procedures based on EU law and those based on national law. The principle of effectiveness, on the other hand seeks to ensure that a national procedural rule does not render it impossible in practice or excessively difficult to exercise rights conferred by the EU legal order.”

Res Judicata

Counsel for the complainant does not accept the respondent’s assertion that the complainant’s dismissal is res judicata by virtue of the hearing of Adjudication reference ADJ000-13464 which took place on 25th February 2019. Counsel submits that the complaint of unfair dismissal was heard on that day without prejudice to the complainant’s position that she was proceeding with her complaint of discriminatory dismissal. Counsel argued that based on the clear facts of the complaints, the doctrine of res judicata has no application.

Article 267 Reference TFEU

Counsel contends that Section 101(4A) (a) of the Employment Equality Act, 1998 is in breach of EU Law if the discriminatory dismissal element of the within complaint is deemed to have been withdrawn 42 days after the WRC letter of 13th November 2018 was issued.

Counsel argued that, in accordance with the CJEU decision in Minister for Justice and Equality and the Commissioner of An Garda Siochána v Workplace Relations Commission and Ronald Boyle, C-378/17 [2019] 30 ELR 57, the WRC, as a court or tribunal within the meaning of Article 267 of the TFEU, can disapply domestic legislation or refer a question to the CJEU if domestic legislation is inconsistent with the provisions of EU Law. The complainant sought such a referral in this case.

In relation to this complaint I find as follows:

The complainant’s initial complaint of discriminatory dismissal (ADJ000-13464) was submitted to the WRC on 26th February 2018 following the termination of the complainant’s employment on 31st August 2017. The complaint was submitted within the time limits of the legislation but was deemed to have been withdrawn on the basis that the complainant’s previous solicitor failed to elect between complaints as required by the legislation. The remaining issues under the Employment Equality Acts, 1998-2015 were addressed in the decisions relevant to that complaint.

The within complaints (ADJ000-17345) were submitted outside of the statutory six-month time limit for the referral of complaints to the WRC. As the complaints were lodged within twelve months of the last date of alleged discrimination, the complaint sought an extension of time in line with the provisions of the legislation.

The Applicable Law

Sections 77(5) of the Employment Equality Act, 1998 states 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.

The complainant argued that she satisfied the test for reasonable cause in relation to the within complaint of discriminatory dismissal and sought an extension of time in line with the provisions of the legislation. The test as outlined by the Labour Court in Determination No: DWT0338 Cementation Skanska v Carroll provides as follows:

“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. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case”.

Parallel Claims

Section 101(4A) (a) of the Employment Equality Act, 1998 states as follows:

4A) (a) Where an employee refers —

(i) a case or claim under section 7, and

(ii) a claim for redress under the Act of 1977,

to the Director General of the Workplace Relations Commission in respect of a dismissal, then, from the relevant date, the case or claim referred to in subparagraph (i) shall, in so far only as it relates to such dismissal, be deemed to have been withdrawn unless, before the relevant date, the employee withdraws the claim under the Act of 1977.

The Employment Equality Act 1998 (Withdrawal of Certain Claims) (Relevant Date) Regulations (S.I. 126 of 2016) provides as follows:

1.    These regulations may be cited as the Employment Equality Act 1998 (Withdrawal of Certain Claims) (Relevant Date) Regulations 2016

2.    (1) The date that falls 42 days from the date of the notification of the employee concerned is prescribed for the purposes of the definition of “relevant date” in subsection (4A) inserted by section 17 of the Credit Guarantee (Amendment) Act 2016 (No 1 of 2016) of section 101 of the Act of 1998.

(2) In this Regulation –

“Act of 1998 means the Employment Equality Act 1998 (No 21 of 1998);

“ notification” means, in relation to an employee who has referred a case or claim under section 77 of the Act of 1998 and a claim for redress under the Act of 1977 to the Director General of the Workplace Relations Commission in respect of a dismissal, a notification in writing from the Workplace Relations Commission informing the employee that subsection (4A) of section 101 of the Act of 1998 applies in respect of the said case or claim and the said claim for redress.

Legal submissions

Equivalence and Effectiveness

I note that the decision in Danqua v Minister for Justice and Equality(No.2) [2017] IECA 20 relates to Asylum and Immigration Law and concerns an applicant who was refused refugee status and was not permitted to submit an application for subsidiary protection after a period of 15 days had elapsed thereafter. In that case the Court of Appeal, seeking to address the principal of equivalence referred certain questions to the CJEU. The CJEU addressing the issue of effectiveness held as follows:

“ that the principle of effectiveness must be interpreted as precluding a national procedural rule, such as that at issue in the main proceedings, which requires an application for subsidiary protection status to be made within a period of 15 working days of notification, by the competent authority that an applicant whose asylum application has been rejected may make an application for subsidiary protection”.

In essence, the principals of equivalence and effectiveness require that the process for vindicating rights conferred by European Law and Domestic Law be applied without distinction and that the procedures for so doing are not impossible in practice or excessively difficult to comply with.

In my view the process for submitting complaints of Unfair Dismissal and Discriminatory Dismissal are without distinction and therefore are consistent with the principle of equivalence. In circumstances where both complaints are submitted a complainant is given 42 days to select which complaint he or she wishes to pursue. I do not find that this process is particularly difficult to comply with. In the instant case, the complaint was not deprived of her rights under EU law to pursue a complaint of discriminatory dismissal. The reality is that the complainant (through the actions of her Solicitor) did not exercise those rights.

Res Judicata

I have considered the submissions of both parties to this complaint. As a matter of efficiency of process, the complaint of Unfair Dismissal and the Industrial Relations referral (pertaining to ADJ000-13464) were heard on 25th February 2019. This occurred in circumstances where the within complaint was not assigned to me and there was no hearing convened on the complaint at that time. The Unfair Dismissal complaint was heard without prejudice to both parties’ positions in relation to the complaint of discriminatory dismissal. I note that at the time of referral of the within complaint (28th August 2018) no hearing had taken place on the previous complaints and to date no decisions have issued on the substantive issues contained therein. Accordingly, I do not accept that the dismissal is “res judicata”.

Article 267 Reference TFEU

As mentioned above I am satisfied that the provisions of Section 101 4(A)(a) are consistent with the provisions of EU Law. Accordingly, I find that it is unnecessary in the circumstances of the within complaint to refer the matter to the CJEU as requested.

Conclusion

Having considered the entirety of the preliminary points and legal submissions raised by the parties to this complaint I find that the first issue to be decided is the timing of the complaint and the complainant’s request for an extension of time. The complainant contends that the failings of her then solicitor in electing between complaints previously meets the “reasonable cause” test for granting an extension of time on the within complaint. However, while I accept that that issue explains the delay in submitting the within complaint within the statutory six-month period, it does not, in my view offer an excuse for the delay. Accordingly, I find that the complainant does not satisfy the test as set out inCementation Skanska v Carroll and therefore I do not grant the extension of time sought.

Having considered the submissions of both parties and for the reasons stated I find that the complaint is out of time and is therefore statute barred.

Discriminatory Dismissal, Extension of time, Statute barred,