Complainant

Respondent

Parties

Sarah  O'Meara

DHG Eden Ltd T/A Clayton Hotel, Liffey Valley (amended on consent at hearing)

Representatives

 Appeared in Person  

Niamh Daly, IBEC Executive

Act

Complaint Reference No.

Date of Receipt

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

CA-00038693-001

30/06/2020

This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

On 30 June 2020, the Complainant submitted a complaint of discrimination on grounds of gender and family status against the Respondent. She submitted that she had been treated unlawfully by discrimination in conditions of employment, promotion and Harassment. The Complainant withdrew the claim of sexual harassment at hearing. She submitted that the most recent date of discrimination was 11 March 2020.

On 9 December 2020, the Respondent Representative clarified that the claim had been submitted with an incorrect legal title and offered the correct title. I got an opportunity to engage with the parties on this topic at hearing and the Legal title was amended, on consent.

On 7 May 2021, I wrote to the Complainant seeking an outline submission and sight of documentation on which she intended to rely at hearing. I explained that any documentation received would be shared with the Respondent. The Complainant furnished a narrative on 13 May accompanied by an email thread with the Respondent CEO and staff.

On 12 May 2021, the Respondent furnished a submission in the case. This sought to address a jurisdictional issue under section 77(5)(a) of the Employment Equality Acts 1998-2012. This was shared with the complainant in advance of the Hearing.

Both parties were addressed at the outset of the hearing on the changes at WRC post the delivery of the Zalewski Judgement at the Supreme Court on April 6, 2021. Both parties signalled their preparedness to proceed with the public hearing as offered and neither party sought  to await the legislative changes around provision of an oath/affirmation. The hearing proceeded on that basis.

The Complainant was welcomed as a Lay Litigant and she outlined that she had commenced work as a Leisure Centre Attendant with the respondent business 2 November 2015 – 17 June 2019, receiving a final payment on June 24,2019. Her gross pay was €519.79 per week.

The Complainant submitted written details of her complaint, which I will summarise.

During her work as a Leisure Centre Attendant, she received several abusive texts from a colleague, Mr A, in whom she was not interested. She submitted that she was in turn treated badly for rejecting him and raised the issue with her Manager. She sought not to be rostered with him, but this was ignored, and she experienced prolonged negative treatment from him, while she was pregnant, which she registered on employee surveys without comment from the respondent.

The Complainant felt compelled to leave because of this treatment and the respondent denied any knowledge of the negative treatment at exit interview. The colleague, Mr A was promoted.

The Complainant was pregnant when she applied for a Supervisors position at the Club in 2018. The Respondent was aware her pregnancy. She was scheduled for interview on 23 July 2018 and she was directed by Ms B, her Manager to the Human Resource Dept to inform them of her pregnancy prior to the interview. Human Resources did not attend the interview, which was unusual as they attended all other interviews.

The Complainant was unsuccessful at interview and was informed that life would be harder as her Manager was also pregnant and the complainant would not have been able to teach as many classes as the incumbent. The Complainant also outlined several arduous tasks she was asked to undertake while pregnant. Human Resources intervened and stopped her lifting a water crate. They also advised her not to powerhouse or lifeguard.

On her departure from the company, the complainant was requested to meet with the Human Resource staff, where she outlined her issues at work. The complainant was requested to revoke her notice and offered mediation with Mr A. The Complainant did not accept the offer as she was upset with how she had been treated by both Mr A and her Line Manager. She had accepted another job.

She had been happy with the meeting but did not return. Maternity pay ceased, and the leaving date was signalled for 14 June 2019. The Complainant missed out on her pay as her notice had not been processed correctly. This was later rectified by the Respondent, but the complainant had been initially ignored on the topic.

The Complainant approached the CEO and his Son to explain her situation. She asked that a 6-month attendance bar post-employment be waivered to accommodate both her and her baby. The Complainant was offered a 3-day working work, resolution of her pay and she also received a letter

“stating that I could use the facilities and a water baby voucher to apologise. I was very grateful.”

The Complainant submitted that during March 2020, she had received a letter from the Respondents staff requesting a meeting to discuss a Social Media post. She refused because of the way she had been previously treated. She was then informed that she was no longer welcome at the facilities (guest passes). The Complainant submitted that she had emailed and messaged in response but was ignored. She stated that she was at a loss to understand the Respondent removal of her welcome on the premises.

Evidence of the Complainant

The Complainant outlined that she was prompted to take this case in seeking to access the Health Club for her and her daughter.

She raised her level of dissatisfaction in her failure to be appointed to a Supervisory position, while pregnant. Ms B subsequently became Assistant Manager and relations disimproved. She decided that she could not return to work post her maternity leave as Mr A had been promoted. She had asked for part time work and was informed that she could use her holidays. The Respondent eventually relented and was granted part time work.

The Complainant submitted that she had been discriminated during her work when she was overlooked for a Supervisors position. She had prior training in Pay Roll and Reports and was the only female in an assistant role. The Complainant was unwilling to provide dates to accompany her submissions. She also refused to provide me access to the March 2020 letter.

Preliminary Issue on Time Limits:

The Complainant did not accept the Respondent argument on statutory time limits. She considered the wording of Section 77(5) (a) and (b)of the Act and confirmed that she was not seeking an extension of time through reasonable cause. She submitted that there should not be a time limit in the case.

I read out the provisions of Section 77(5)(a) and 77(5)(b) as the Complainant did not have a copy of the Legislation to hand. I allowed time for consideration of same.

Substantive Case:

The Complainant told the hearing that she had received a letter dated March 11, 2020 from the Respondent. This informed her that it was in her best interests not to attend the Health Club. She called the Centre several times and was then overtaken by Lockdown (national pandemic)

The Complainant made two conflicting statements when she first said that this letter had not kept her out of the Club. She then added that she had not been in the Club for the past year.

The Complainant attributed the contents of the letter to her unresolved issues arising from her pregnancy during 2018.

She re-affirmed that her objective is to access the building she understood she was prevented from entering. The Complainant was invited to submit relevant documentation to which she had referred in her evidence and supporting case law for her stated position

The Respondent did not avail of the opportunity to cross examine the Complainant.

I received some emails, post hearing, which corresponded to the complainant’s conclusion of employment. These were shared with the Respondent but did not illicit a response.

The Respondent was represented by IBEC and by way of written submission dated May 12, 2021 outlined a re-affirmation of the correct legal title of the respondent. This has since been incorporated into the Heading of this decision. The Respondent has rejected all complaints of discrimination.

Preliminary Issue:

The Respondent Representative submitted that the case should be addressed and dismissed on the preliminary matter of statutory time limits in accordance with Section 77(5)(a) of the Act.

The Representative contended that the claim was referred to the WRC on 30 June 2020. She submitted that the complainant had been employed by the respondent from 2 November, 2015-14 June 2019, more than 12 months prior to the referral of this complaint.

 The Complainant had relied on 11 March 2020 as the date of the most recent date of discrimination.  This fell some 9 months after the employment relationship had ended. The Complainant had framed her complaint on alleged incidents which occurred during the complainant’s employment. These dates were remote and removed from March 11, 2020.

The issue of March 2020 was not connected with the complainant’s work. This involved negative comments placed on social media, following which the respondent General Manager reached out to the complainant but was severely rebuked by her.

The Respondent representative submitted that the Complainant had not sought an extension of time limit in accordance with Section 77(5)(b) and none was warranted in the case as the 12-month period had since passed.

In quoting from an EAT case of Sheehy v Bishop Moriarty UD 1246/2008: the representative submitted that logic dictated that the issue of time limits should be dealt with at the commencement of hearing and in advance of a substantive consideration.

The Appellant has submitted that the Tribunal has the authority, based on constitutional or natural law and justice principles, to investigate or hearing into this case. The Tribunal cannot accept this argument. The Tribunal has been set up under statute by the Oireachtas in pursuance of its constitutional powers as legislature. The Tribunal will always have regard to legal and constitutional rights in exercising its limited jurisdiction, but it cannot assume extra legal authority to hold a hearing into an alleged unfair dismissal claim which is statute barred. Such an action would be in fundamental breach of its powers and would, quite rightly, be overturned by the Courts.

 Substantive Issue:

The Respondent was reluctant to engage in the substantive nature of the case. I explained that I was obliged in accordance with Section 79 of the Act to explore  the preliminary issue with a consideration of the substantive issue. I explained the provisions of Section 79(3)(a) and Section 79(6)(b) to the parties and their application to both parties .

The Respondent representative submitted that the Complaint was manifestly out of time and the Complainant, through her oral and written submissions had failed to satisfy the burden of proof in accordance with Section 85A of the Act.

She reaffirmed that the March 11 letter had no relevance to events chronicled from a historical employment and the case should be dismissed. The Complainant had not been barred from the building.

The Respondent denied all allegations of discrimination and harassment. The Respondent clarified that the complainant had raised the matter of unwelcome texts on three occasions to Ms B. The staff survey relied on by the complainant was anonymous. The Respondent had not blocked her promotional pathway.

I sought a copy of the contract of employment, job description and the details within the respondent gift on issues referred to as March 2020, which were attributed to respondent staff members.

The Respondent tabled a copy of the complainants exit interview dated 24 May 2019, where her recorded reasons for leaving were cited as:

Inadequate pay, Inadequate Supervision, No chance of Promotion, No Managerial support, better opportunities elsewhere. She marked the hotel and the Company as largely very good and “one of the best “. She stated she was unhappy with the suitability of people who filled vacancies. she rated her Supervisor between the margins of “good and ok”. she marked her Department Operations Manager between the margins of “ok and poor “

The cessation form dated 24 May 2019, reflected the complainant’s reasons for leaving as

1 working hours

2 securing a better job

Pay and benefits

No support from Management e.g. bullying

On 21 May 2021, the Respondent submitted copies of the following documents which were shared with the complainant but did not illicit an on-point response.

1. Undated letter from the Respondent Human Resource Manager which referred to a “recent social media post “and a request to meet Human Resources and the General Manager.

2 Response attributed to the Complainant dated 14 February 2020, which contained a very strongly worded rebuke to the request to meet. It was also accompanied by a demand not to contact her again “unless you want to be invited to WRC about past grievances with you both “.

3 March 11,2020 a request by the respondent to refrain from using the Club.

4 Social Media Postings.

5 Contract and Job Description.

I have been requested to investigate the claims of discrimination made on gender and family grounds.

The issue for me is whether the Respondent discriminated against the Complainant by reason of her gender and family status, in relation to conditions of employment, harassment and promotion, contrary to the terms of the Employment Equality Act 1998 as amended.

 An earlier claim on sexual harassment was withdrawn at hearing

 In reaching my decision I have listened carefully to the party’s presentations and have taken into consideration all the submissions, oral and written, made to me by the parties as well as the evidence given by the Complainant at the Hearing.

The Respondent did not advance witnesses in the case.

I have also had regard for the post hearing documentation received, which was relevant to my request at hearing.

I have taken some guidance from the spirit of the legislation provided in the pre-amble to Employment Equality Act, 1998 as amended.

An Act to make further provision for the promotion of Equality between employed persons , to make further provision with respect to Discrimination in, and in connection with, employment, vocational training and membership of certain bodies ; to make further provision in connection with Council Directive No 75/117/EEC on the approximation of the laws of the Member states relating to the application of the principle  of equal pay for men and women and Council Directive no 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment , vocational training and promotion , and working conditions , to make further provision with respect to harassment in employment and in the workplace……….

Preliminary Issue:

I explained to the parties at hearing that I would hear the Preliminary issue with the substantive case.

 I explained that if I found for the complainant at preliminary stage then I would proceed to address the substantive case and my decision would reflect that. I explained that if I found against the Complainant on the Preliminary Issue. My decision would reflect this without advancing to a further consideration of the substantive case.

I advised both parties on the avenue  of appeal open to them. The Complainant accepted this road map. The Respondent wished the matter to rest solely on the preliminary point.

In the interest of Equality of Arms, I cross matched the Respondents legal submissions by reading out the section of legislation to which they referred. I did this to allow the complainant to consider the application of the provisions of the legislation, if any, and to furnish her responses as I had ascertained that the Complainant did not have a copy of the legislation to hand.

I read out Section 85A, Burden of Proof

                   Section 77(5) (a)and (b) Time Limits

                   Section 77 A Dismissal of Claim

                  Section 79 on Preliminary Issue

During the hearing, it became apparent that there may have been an opportunity for the parties to engage on the issues outlined. I offered that opportunity to the parties. The Complainant did not express a view and the Respondent said that they had not received instructions to engage informally. I accepted those positions and continued with my Investigation.

The Act gives a very broad definition of employee in Section 2 of the Act.

Discrimination is defined in section 6 of the Act

6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which—

(i) exists

(ii) existed but no longer exists

…..

Section 6(2) a covers the ground of gender

Section 6(2) (c) covers family grounds

Section 8 of the Act precludes discrimination by employers in access to employment, conditions of employment, training, promotion and classification of posts.

Section 14 (7)(a) covers the parameters of harassment.

Section 77 of the Act provides details on the forum for seeking redress under the Act.

The forum for seeking redress.

77

77.— (1) A person who claims —

(a) to have been discriminated against or subjected to victimisation,

(b) to have been dismissed in circumstances amounting to discrimination or victimisation,

(c) not to be receiving remuneration in accordance with an equal remuneration term, or

(d) not to be receiving a benefit under an equality clause,

in contravention of this Act may, subject to subsections (3) to (9), seek redress by referring the case to the Director General of the Workplace Relations Commission

This is the claim referred by the Complainant on 30 June 2020.

(4) In this Part, in relation to a claim referred under any provision of this section—

(a) ‘the complainant’ means—

(i) the person by whom it is referred, or

(ii) where such a person is unable, by reason of an intellectual or a psychological disability, to pursue it effectively, his or her parent, guardian or other person acting in place of a parent, and

(b) “the respondent” means the person who is alleged to have discriminated against the complainant or, as the case may be, who is responsible for providing the remuneration to which the equal remuneration term relates or who is responsible for providing the benefit under the equality clause or who is alleged to be responsible for the victimisation.

Statutory Time limits are set down by Legislation and are set out below.

 (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 the date of its most recent occurrence.

The Complainant outlined that the alleged contraventions to the legislation occurred during her work with the Respondent. This had ended when the Complainant found new work on conclusion of her Maternity leave and where both parties agreed that a delayed end payment of salary was made on 24 June 2019. The Complainant had submitted her end date as 17 June 2019.

The Complainant submitted a record of her acute dissatisfaction shared with the respondent regarding the administrative delay associated with her last payment. This was rectified by the respondent.

I note from the complainants papers that some informal contact followed with the respondent regarding seeking a continuing   access to the club pool for her and her daughter , thus seeking  a waiver “ on a 6 month probation from being on the premises after resigning “ It seems from the papers and the complainants evidence that this was facilitated by the respondent and supported by a voucher system .  

Both parties agree that there was no further contact between the parties until the letter which prompted the complainant’s response of 14 February 2020.

The copy of that letter sought a meeting with the complainant regarding sole media posting. This was not linked to the complainant’s employment. The Respondent sent some extracts from social media postings, these had not been exhibited at hearing and were inconclusive in terms of my investigation.

However, there was no dispute between the parties on the content of the complainant’s response dated February 14, 2020. She severely rebuked the respondent and distanced herself from the employment. She added a “no contact clause “and qualified this by stating “unless you want to be invited in front of the WRC with regards to past grievances I’ve had with both of you “The email was sent to the General Manager and the Human Resource Manager.

This placed the complainant’s employment in the past tense for me.

I inquired whether the complainant was seeking an extension of time limits in the case on reasonable cause? She confirmed that she was not. Therefore, S 77(5)(b) has no application in the case.

(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.

Letters 2020

 The Complainant has submitted that the subsequent March 11, 2020 communique which asked her to “ refrain from using the Club “pending an investigation

served as a trigger to cause her to reflect on her negative experiences while employed by the Respondent. She expressed a frustration and clarified that all she wanted was to access the pool. She denied any knowledge of social media posts by her or her family.

I inquired whether this case was more grounded in Equal Status than Employment Equality?

The Complainant was clear that she had experienced discrimination in the workplace and the March 11, 2020 letter had re-activated these memories for   her. She completely disputed grounds for dismissal or that statutory time limits applied in the case and sought a decision in the case.

The Respondent argued successively that the complainant did not hold locus standi in the case and it should be dismissed.

In considering the facts of this case, I am bound to apply the statutory test provided in Section 77(5)(a). It is not unusual that a complainant may submit details of a complaint post-dating employment, however, the events complained of must be governed by a statutory time limit.

 The exception to this is if a continuum of events is relied on by the complainant. However, this requires that an occurrence must take place, with a nexus to employment within the cognisable period, which in this case is 31 December 2019- June 30,2020. This was impossible as the complainant did not fulfil, by her own admission, the definition of an employee of the respondent during that period.

The trigger event in this case and one acknowledged by the complainant was the request for her to refrain from using the club pending investigation. This is a matter separate and distinct from her historical employment.

In Giblin v Bank of Ireland DEC E2011-161, the former Equality Tribunal found that a delay of 3.5 years was too long a gap in time to advance a claim. In Dept of Defence v Barrett at the Labour Court, EDA, 1017, the Court upheld a dismissal of claim with 12 months delay. In looking to the High Court in Nowak v Data Protection Commissioner [2013]1 ILRM 207, the complainant pursued access to an exam script initially denied then made available on controlled conditions.

 The High Court held that once the Data Commissioner found that the complainant had been afforded an opportunity to view the script, personal data was not involved. It followed that the Court was being asked to proceed with an investigation where no breach of the data protection act could be identified, and the claim was deemed “frivolous and vexatious “

3) The terms “frivolous or vexatious” are not necessarily pejorative. “Frivolous”, in this context, means a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome. R. v North West Suffolk (Mildenhall) Magistrates' Court, ex p.Forest Heath District Council [1997] EWCA Civ. 1575; unreported, Court of Appeal, May 16, 1997 considered.

I have considered all parties submissions in this case and I have taken account of the complainant’s evidence. I accept that she carries a large burden of unresolved issues from a previous employment. I note that she did not bring those matters forward to the WRC during or in the immediate aftermath of her employment or at least within the statutory time limits permitted.

 However, the circumstances of the trigger events in this case , that of the letter that led to the response of February 14 and the eventual March 11 letter cannot be identified  objectively as forming a causal connection or a call back  to a historical employment relationship , which ceased more than a year prior to this claim .The issue, about curtailed  access to a pool , may be a matter of private law between the parties .

Section 77(A)(1) of the Act provides that the Director General of WRC may dismiss a claim at any stage if of the opinion that it is made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

I have found that the complainants unusually intense personalised  rebuke of her former employer, detailed in the email dated 14 February 2020, displayed a fundamental misunderstanding of  the elasticity and application of statutory time limits in the employment equality legislation and I have not identified an arguable case for action. The case has no reasonable chance of success and on those grounds, I dismiss this case.

The claims of  discrimination are not well founded. The case concludes on the Preliminary Issue .

Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.

I have considered all the circumstances put forward by the parties in this case. In accordance with Section 77(A)(1), I have dismissed the claims.

Discrimination on gender and family grounds, delay in pursuing the complaint.