ADJ-00024033

Complainant

Respondent

Anonymised Parties

An employee

A Catering Company

Representatives

Aleksandra Tiilikainen Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00030731-001

09/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030731-002

09/09/2019

The respondent is a catering services company where the complainant was employed from 7 June 2018 until 9 March 2019.

The complainant submitted that he was unfairly dismissed by the respondent.

The complainant also submitted that during a meeting with the HR function, one of the managers stated that “Since you are latino, you might come across in a different was, as you don’t have English as a first language, you might come across sometimes as too expressive”. He submitted that this amounted to discriminatory treatment. The complainant indicated that there was no treatment that could amount to victimisation under the Act.

The respondent denied that it had dismissed the complainant unfairly and furthermore that as the complaint was not made within the appropriate timeframe, and as it did not relate to any of the exceptions provided for in the legislation, that the WRC had no jurisdiction to hear this element of the complaint.

The respondent denied that it had used the term ‘latino’ during a meeting with HR to discuss the complainant’s communication skills, with particular reference to his tone and how he was communicating rather than what he was saying. The respondent submitted that this element was also out of time, and that, accordingly, the WRC has no jurisdiction to hear this element of the complaint.

CA-00030731-001

The complainant confirmed that he was employed from 7 June 2018 until 9 March 2019. Section 2(1)(a) of the Unfair Dismissals Act, 1977 states that:

2.— (1) Except in so far as any provision of this Act otherwise provides, this Act shall not apply in relation to any of the following persons:

( a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him [ … ],

Section 6 (2) of the Act makes provision for certain exceptions to Section 1. It states that

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(aa) without prejudice to paragraph (a), the employee —

(i) being a member of a trade union which made a request referred to in section 2 (1) of the Industrial Relations (Amendment) Act 2001 ,

(ii) being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates, and

(iii) having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request,

(b) the religious or political opinions of the employee,

(ba) the employee having made a protected disclosure,

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

(d) criminal proceedings against the employer, whether actual, threatened or proposed, in relation to which the employee has made, proposed or threatened to make a complaint or statement to the prosecuting authority or to any other authority connected with or involved in the prosecution of the proceedings or in which the employee was or is likely to be a witness,

(dd) the exercise or proposed exercise by the employee of the right to parental leave, force majeureleave under and in accordance with the Parental Leave Act, 1998 , or carer ’ s leave under and in accordance with the Carer ’ s Leave Act, 2001

(e) the race, colour or sexual orientation of the employee,

(ee) the age of the employee,

(eee) the employee ’ s membership of the travelling community,

(f) the employee ’ s pregnancy, attendance at ante-natal classes, giving birth or breastfeeding or any matters connected therewith,

(g) the exercise or proposed exercise by the employee of the right under the Maternity Protection Act 1994 to any form of protective leave or natal care absence, within the meaning of Part IV of that Act, or to time off from work to attend ante-natal classes in accordance with section 15A (inserted by section 8 of the Maternity Protection (Amendment) Act 2004), or to time off from work or a reduction of working hours for breastfeeding in accordance with section 15B (inserted by section 9 of the Maternity Protection (Amendment) Act 2004), of the first-mentioned Act,

(h) the exercise or contemplated exercise by an adoptive parent of the parent ’ s right under the Adoptive Leave Acts 1995 and 2005 to adoptive leave or additional adoptive leave or a period of time off to attend certain pre-adoption classes or meetings,

(i) the exercise or proposed exercise by the employee of the right under the Paternity Leave and Benefit Act 2016 to paternity leave or transferred paternity leave within the meaning of that Act,

(j) the exercise or proposed exercise by the employee of the right under the Parent ’ s Leave and Benefit Act 2019 to parent ’ s leave or transferred parent ’ s leave within the meaning of that Act.

As no evidence was presented to show that the complainant falls within the provisions of Section 6, I find that in accordance to the provisions of Section 2(1) of the Act as cited above, the Act does not apply to the complainant.

CA-00030731-002

The complainant confirmed that there was a single act giving rise to his complaint under the Equality Acts and that this act took place on 1 March 2019. The complainant referred his complaint to the Workplace Relations Commission on 9 September 2019. Section 77(5) states that

(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.

As the complainant confirmed that the alleged discrimination took place more than 6 months prior to the referral of the complaint and furthermore that no reasonable cause for the delay in referring the complaint was presented, I find that this element of the complaint is out of time.

CA-00030731-001

My decision is that as the Unfair Dismissals Act does not apply to the complaint, the complainant cannot succeed with this claim.

CA-00030731-002

My decision is that as the referral of the complaint of a breach of the Employment Equality Acts is outside the statutory timeframe laid down in the Acts, the complainant is not entitled to succeed with this claim.

Unfair dismissal, length of employment, exceptions, Employment Equality, time limits