ADJ-00031074

Complainant

Respondent

Parties

Frank  Madigan

Public Appointments Service

Representatives

  Self-represented.

 Chief State Solicitor's Office. Mr. Mark Finan, B.L.

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-00041315-001

30/11/2020

The Complainant has submitted a complaint that he was discriminated on age grounds contrary to the provisions of the Employment Equality Act, 1998.

The Complainant was employed as clerical officer in a government department.

The act of discrimination was the failure of the respondent to appoint him to a panel established to fill vacant Higher Executive Officer positions in government departments. Appointment to such a panel and subsequent placement in a Higher Executive Officer position would have been a promotion for the complainant.

The most recent act of discrimination occurred on 7 February 2020.

The Complainant lodged his complaint with the WRC on the 20 May 2020, naming the incorrect respondent.

He submitted his complaint to the WRC on 30 November naming the correct respondent.

Statutory Time Limits.

The Respondent states that without prejudice to the Respondent’s position that no discrimination was perpetrated against the complainant in the competition for the selection of Higher Executive officers, section 77(5)(a) of the Act of 1998 requires the Complainant to have submitted his complaint within six months of the date of the last act of discrimination. The Complainant submitted his claim on 30th November 2020. Even if it is accepted that the most recent act of discrimination occurred on 7th February 2020-which is contested, the lodgement of the complaint was made more than two months outside the six-month time limit. The six months was up on or before 6th August 2020.

Date of last act of discrimination.

The Respondent rejects the Complainant’s assertion that the last act of discrimination occurred on the 7 February 2020. The Respondent maintains that the last act of discrimination has to be the 15 November 2019. On this date, the Respondent replied to the Complainant’s request for a formal review of the marks and notified him that said marks had been below the threshold required for appointment to the panel of Higher Executive Officers. They gave detailed information on the areas on which he did not meet the required standard. This is the last occasion on which the Respondent determined or had any input into their decision not to appoint him to the panel. His subsequent contacts with the Respondent on the 16 November were in the nature of requests under the Freedom of Information Act, 2014 for the disclosure of data concerning his employment and disclosure of data concerning the interview. He sought the marks awarded to and percentage failure of candidates assessed by other interview boards in this same competition for comparative purposes The Respondent provided him with some of the information requested. He sought his own notes on responses to tasks put to him at interviews; notes of the interview board’s conversation. He appealed the decision of the Respondent not to disclose certain documents to him to the Information Commissioner on 21 February 2020. The respondent’s decision was upheld, and he made no further appeal.

If the later date of 7 February as suggested by the Complainant is accepted, the complaint is still out of time. Every move by the Complainant after the 15 November to establish why he was unsuccessful was made to a different body and hence a cause of action might lie with that body but not with the respondent.

Extension of time.

Without prejudice to the respondent’s contention that the last act of discrimination occurred on 15 November 2019, and in circumstances where the Adjudicator elects for the 7 February, the Respondent contends that section 77(5)(b) allows jurisdiction to the WRC to consider the Complainant’s complaint only where it is satisfied that the Complainant has established reasonable cause such as to justify an extension of time.

The Respondent relies on the classic interpretation of reasonable cause, found in the Labour Court decision of Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT 0338 where the Court stated 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.”

Furthermore, the Respondent points to a recent High Court decision in Smith v Cisco Systems Internetworking [Ireland] Limited [2020] IEHC 714 which considered an appeal on a point of law from a Labour Court decision. In that decision, the Appellant alleged that the Labour Court had erred in law in finding that a lack of documentation in his possession had not amounted to a reasonable cause for extending the time period to bring a complaint of discrimination on grounds of race. Meenan J considered the Labour Court refusal and stated

“ The decision of the Labour Court clearly considered an extension from six months to twelve months as sought by the appellant. In refusing such an extension, the Labour Court did not accept the reason put forward by the appellant: lack of documentation. The Labour Court concluded “that no great degree of documentation is required in order for the appellant to have made a complaint to the Workplace Relations Commission as regards any event or occurrence which he believed to constitute discrimination. Again, the appellant has identified no error of law as would lead this Court to overturn the ruling of the Labour Court.”

The Respondent maintains that as in Smith v Cisco Systems Internetworking [Ireland] Limited [2020] IEHC 714, the Complainant’s pursuit of further information in the instant case does not amount to reasonable cause.

On 15th November 2019, the Complainant had been informed of the decision in respect of his application. Further, the Complainant had been provided with the detailed breakdown of his scores across all elements of the interview and presentation and thus, the grounds upon which the Complainant had not succeeded in his application were clear. There was no further information required to allow the Complainant to make his complaint.

The Respondent submits that the identification of the wrong Respondent to the WRC is not a reasonable ground to extend jurisdiction. The Complainant was at all times aware that the correct respondent was the Respondent herein. The Complainant made an application in response to Circular 06/2019 which expressly confirms that the competition was an inter-departmental competition and that the competition would be held by this Respondent. Further, the Complainant directed all of his correspondence in relation to his appeal of the outcome of the competition and complaints under the 2014 Act to this Respondent. The Complainant at all times understood that the Department of Employment Affairs and Social Protection as his employer was not responsible for the competition. The Complainant’s error in identifying the correct Respondent is without reasonable explanation and cannot be used to justify an extension of the statutory time limits.

The Complainant maintains that he was discriminated on the basis of age contrary to section 8 of the Employment Equality Act, 1998.

The Respondent failed to appoint him to a panel of employees earmarked for appointment to the position of Higher Executive Officer in government departments. Their decision was inexplicable, and they failed to adequately explain the reasoning behind their decision. He could only conclude that his age decided the matter against him. He is 68 years of age.

The Complainant requests the adjudicator to allow for the operation of section 77(5)(b) in his favour. His delay in submitting his complaint to the WRC is based on reasonable cause.

He asks the adjudicator to consider his extensive efforts to resolve the matter in a timely fashion.  His ability to submit the complaint within the statutory time limits was hampered by the Respondent’s delays and by delays beyond his control. He maintains that it would have been irresponsible of him not to have exhausted internal mechanism prior to submitting his complaint.

The Respondent notified him on 30 August of that he had not been selected for inclusion on the panel of appointees. He immediately activated the informal review on 30 August and the later formal review on the 10 October 2019 as provided for in the Code of Practice Appointment to Positions in the Civil Service and Public Service. These reviews failed to disclose the marks awarded by different interview committees in the same competition. They gave insufficient details for their reasoning.  On 16 November he made a request to the Respondent under Freedom of Information Act,2014. This generated a response on the 15 January 2020. He submitted a review of the information supplied on the 17 January 2020; he received a response to this request on 7 February 2020. He then referred his complaint to the Office of the Information Commissioner on the 21 February. He received a reply to that complaint on 18 May 2020. He submitted a complaint of discrimination to the WRC on 20 May 2020. The Complainant states that due to the constraints imposed by Covid 19, he did not get an acknowledgement of his complaint until 23 October 2020 confirming that the complaint had been forwarded to the respondent. On 30 November 2020 the WRC advised him that he had named the incorrect Respondent: The Department of Employment Affairs and Social Protection. He re-submitted his complaint naming the correct Respondent on the same day, the 30 November 2020.

Cross examination.

The Complainant stated that he needed simple answers in response to the questions which he had put to the Respondent under the Freedom of Information Act 2014. He did not get these. He did not know if the answers would have changed the course of history. He believed that the WRC would send him back to the Respondent’s FOI section if he did not have the required information. He believes that the delays brought about by Covid 19 restrictions should be considered. The delay in acquiring the information while not the sole factor, is a significant factor in the delay in submitting his complaint.

I am required to adjudicate on a complaint that the Respondent discriminated against the Complainant contrary to section 8 (1)(d) of the Employment Equality Act 1998, in terms of the age grounds, when they failed to appoint him to a panel established  to populate vacant Higher Executive Officer positions in various government departments. This placement would have represented a promotion for the complainant. But I must first decide on the jurisdictional points.

Compliance with statutory time limits. 

Section 77(5) requires that I address the question as to whether I have jurisdiction to hear the complaint.

Relevant Law

Section 77(5)(a) of the Acts provides: -

“(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”

Section 77(5)(b) of the Acts allows for an extension of a further six months as follows:

“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.”

Date of the last Act of discrimination.

The Complainant dated the last act of discrimination as having occurred on the 7 February 2020. He submitted his complaint to the WRC on 30 November 2020 nearly three months beyond the statutory limit using his own date of the 7 February. The Respondent identifies the 15 November 2019 as the date on which the last act of discrimination occurred. If the 15 November is the correct date for the last act of discrimination, the interval between the last act of discrimination and the submission of the complaint is beyond the (outer) limit of 12 months, and I would not have jurisdiction to activate section 77 (5) (b) of the Act of 1998 in favour of the Complainant.

It is accepted that it was the failure of the Respondent to appoint him to the inter-departmental panel of appointable candidates for the position of Higher Executive Officer in government departments which constituted the discriminatory act. It is accepted that this decision was conveyed to him on the 30 August 2019. It is accepted that the review of this decision concluded on 15 November with the respondent upholding the decision of the selection board.

Did the Respondent engage in a discriminatory act on 7 February 2020?

The act of alleged discrimination which occurred on the 7 February was the Respondent’s letter setting out the reasons why they could not or would not disclose all of the data requested by the Complainant under the Freedom of Information Act, 2014. The Complainant requested the scoring key for the competition, the task or exercise assigned to him, his responses to this task and the assessors’ notes and conclusions. The Respondent advised the Complainant that disclosure of this information could give him an advantage in any future competition as all this material was drawn from a template destined to be used in repeated competitions and he could enjoy a competitive advantage over other candidates. They gave the Complainant his marks relative to the averages scored by other candidates. In the initial stages of his challenge, he had been given his actual marks under the three-heading used to assess the candidates. They also pointed out that the areas for assessment in the competition had been supplied to candidates before the interview. The respondent’s entire response of 7 February was framed in in the context of what they saw as permissible under the Act of 2014 and the respondent’s obligation to protect those who applied for the position in the knowledge that it was a confidential process. The letter of 7 February did not engage in defending the assessors’ decision not to appoint him nor adjudicate on the selection process.

The Complainant’s enquires under Freedom of Information Act, 2014 prompting the Respondent’s impugned letter of 7 February were concerned with the release of information. The release, or not, of the requested information was the only function of the Respondent’s FOI section. The responses to the Complainant’s enquiries could not have resulted in an altered decision. The review stage had concluded, and the complainant opted not to request a further stage 8 review of the decision. It would be a different scenario if the Respondent’s Freedom of Information section had the wherewithal to alter the outcome of the selection process or keep the viability of his complaint alive, but they did not. All they could do was release information of potential relevance to the prosecution of his complaint. They neither had the capacity to agree or refute his complaint of discrimination. Their decision on the non- release of documents led the complaint down a different track and to the door of the Information Commissioner.

The Complainant did not point to any element of the Respondent’s letter of 7 February which suggested discriminatory intent on the grounds of age, or to any element designed to obstruct the passage of his complaint. He did not specify what exact information, withheld from him, impeded him from submitting his complaint within the statutory time limits. His criticism of the failure to disclose documents was centred on what he saw as an incorrect and inadequate interpretation of the Act of 2014 and not an infringement of his right to no less favourable treatment than a person of a different age.

Perhaps in the overall context of the evidence to be adduced in a hearing to support a complaint of discrimination, the respondent’s decision to withhold the release of certain data might have been of significance, but of itself, and at that point in time, the non- release of data did not constitute discriminatory intent.

Section 85A of the Act of 1998 provides that the burden of proof lies with the Complainant in a complaint of discrimination to set out the facts which they believe suggest an inference of discrimination. The Respondent is not statutorily liable to assist the Complainant in his quest to prove that a discriminatory intent drove the selection process.

The Respondent’s rejection of his review of their decision occurred on 15 November 2019.The Complainant was aware of facts which he believed gave rise to a cause of action from that date.

Based on the evidence, and for the reasons set out above, I am unable to accept that the letter of 7 February constitutes an act of discrimination. I therefore find that the last act of discrimination occurred on 15 November 2019. This date means that the claim for redress was not submitted within the statutory limits. I therefore do not have jurisdiction to adjudicate on the complaint of discrimination on the age ground contrary to the Employment Equality Act, 1998.

I find that I do not have jurisdiction to hear this complaint of discrimination.

Statutory time limits.