FULL RECOMMENDATION
PARTIES : ROTUNDA HOSPITAL DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00025438 CA-00032325. This is an appeal by Ms. McNally, ‘the Complainant’ against a Decision of an Adjudication Officer, ‘AO’, that did not uphold her complaint against the Rotunda Hospital, ‘the Respondent’, that she had been discriminated against, contrary to the Employment Equality Acts 1998-2015, ‘the Acts’. The Complainant brought claims on grounds of gender and disability alleging victimisation, non provision of training, failure to provide reasonable accommodation and harassment. On the disability grounds the Complainant stated that she suffered from stress and the effects of the menopause. The AO found that the Complainant ceased to work for the Respondent on 20 May 2019, that she had submitted her complaint on 19 November 2019, i.e. six months to the day of her ceasing to work for the Respondent and that she had not shown any discrimination in the six months prior to submission of her complaint, as required by the Acts. Therefore, a preliminary issue to be determined by the Court was whether there was a valid complaint within the meaning of the Acts before the Court for its consideration. A hearing was held to consider this preliminary issue. Summary of Complainant arguments on the preliminary issue The Complainant submitted a considerable amount of documentation to the Court and offered many arguments. The following is an attempted summary of many of those arguments that appear to the Court to relate to the issue of time limits. There is case law that states that the period of limitation runs only from when the person had knowledge of the act in question. The Respondent failed to provide relevant information, (details provided). The Respondent failed to complete the Grievance Procedure and relied on a false prognosis. The Respondent failed to comply with Labour Court rules in not sending their submission within 21 days of receipt of the appeal. This was also the case in respect of the proceedings in the Workplace Relations Commission, ‘WRC’. As per EUCHR Article 6, the Complainant is entitled to a fair and impartial hearing. The Respondent was aware from July 2019 that there was a dispute. The Respondent has not provided evidence that they investigated the harassment complaint. The Respondent misrepresented facts. As per s.36(9) of the 2004 Act ‘references in this section to the date of referral shall be construed as references to the date of misrepresentation’. There are contradictory interpretations of an imputed disability in the Respondent’s submission that reflect contradictions between the Respondent’s interpretation and medical advice received. The Respondent has failed to produce evidence of the exact date of retirement. The Respondent relied on their own error in reading the complaint form. The Respondent is required to provide precise details as to how they calculate a breach of time limits in respect of all complaints. Retirement caused harassment to continue. The Respondent did not act in accordance with their sick leave policy. A number of cases, (details supplied to the Court), are relevant to consideration of this matter. The Complainant has a right to have her case heard under the Charter of Fundamental Rights. Continuation of retirement is a continuation of misrepresentation. Remote work and/or part-time work were not considered by the Respondent. The discrimination due to retirement complaint could only be formulated when retirement occurred. Summary of Respondent arguments on the preliminary issue. The Complainant’s complaints that she was discriminated against in relation to the alleged provision of training, alleged victimisation, alleged non provision of reasonable accommodation and alleged harassment are all statute barred unless she can establish an occasion on which these alleged occurrences arose in the six months prior to the submission of her complaint on 19 November 2019. The Complainant cannot seek to rely on the same set of facts to pursue more than one of the above allegations. The Complainant, in her submission, indicates one incident that she states falls within the cognisable period. Even if the Court accepts this, there is no automatic conferring of jurisdiction on the other matters. The Respondent accepts that the Complainant was retired on ill health grounds related to incapacity due to a disability. However, there is no basis for arguments made in respect of alleged discrimination due to alleged stress or alleged effects of menopause within the six months cognisable period. The applicable law Employment Equality Acts 2. “disability” means— (a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body, (b) the presence in the body of organisms causing, or likely to cause, chronic disease or illness, (c) the malfunction, malformation or disfigurement of a part of a person’s body, (d) a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or (e) a condition, illness or disease which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person; 77. (5) (a) Subject toparagraph (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 complainantparagraph (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. (6A) For the purposes of this section — (a) discrimination or victimisation occurs — (i) if the act constituting it extends over a period, at the end of the period, (ii) if it arises by virtue of a term in a contract, throughout the duration of the contract, and (iii) if it arises by virtue of a provision which operates over a period, throughout the period, (12) (a) Not later than 42 days from the date of a decision of the Director General of the Workplace Relations Commission on an application by a complainant for an extension of time undersubsection (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal. (b) On the appeal the Labour Court may affirm, quash or vary the decision. Deliberation and Determination on preliminary issue. The original complaint form submitted by the Complainant to the WRC states specifically ‘The retirement on imputed grounds on 20thMay 2019 was direct discrimination on imputed grounds…’ The complaint was submitted on 19 November 2019. Therefore, a complaint was made in respect of a matter comprehended by the Acts within a six month cognisable period. It is the contention of the Complainant that the actions of her employer in retiring her on health grounds constitutes an act of discrimination on grounds of an imputed disability in and of itself. It is clear to the Court that this complaint falls within the cognisable period and that the Complainant is entitled to make her case. It goes without saying that acceptance of jurisdiction by the Court does not imply acceptance or otherwise of the substantive complaint, that has yet to be determined. Under questioning from the Court, the Complainant asserted that the act of her employer in retiring her was an act of harassment within the meaning of the Acts. She said also that it amounted to a failure to afford her a reasonable accommodation in respect of an imputed disability that might have enabled her to remain in the employment. The Complainant disputes that she has the imputed disability. For these purposes, that is irrelevant. The definition of ‘disability’, as set out above covers a disability that is imputed. The Complainant is entitled to argue that she suffered discrimination due to an imputed disability even if she disputes that she has the disability. Again, at this stage the Court is dealing solely with the preliminary point regarding time limits and can offer no view as to the merits or otherwise of the substantive complaint. The Acts are clear and in the application to this case the events of 20 May 2019 and the related complaints of alleged direct discrimination and harassment are validly before the Court for consideration. The Respondent argued to the Court that matters related to alleged failure to provide a reasonable accommodation were not matters that arose on 20 May 2019 and should not, therefore, fall to be considered by the Court. In the view of the Court, it can be argued, and it is open to the Court to determine, that the termination of employment falls within the terms of s.77,6A,(i) of the Acts, as set out above, so that 20 May 2019, the last day of employment, is a date on which an alleged failure to provide a reasonable accommodation is applicable. The Court concurs with the view of the Respondent that only those matters related to the imputed disability are applicable to the events of 20 May 2019, in accordance with the Complainant’s complaint form, and that matters related to other alleged disabilities are matters that, if they arose, did so outside of the cognisable period and, as a result, cannot be determined by the Court. Likewise, no issues in respect of gender arise from the actions of the Respondent in retiring the Complainant on health grounds on 20 May 2019, so it follows that any complaints on that ground arise outside of the cognisable period and are not within the jurisdiction of the Court to consider. The Court notes that the Complainant, when asked, stated that, in addition to a failure to provide a reasonable accommodation, the events of 20 May 2019 constituted harassment and direct discrimination. It is, therefore, to these alleged breaches of the Acts that the Court’s consideration must be confined. The Court does not accept the Complainant’s argument that a difference between a medical report that says the Complainant has a disability and ‘will be’ unable to continue in her employment and the Respondent’s communication to her that she ‘is’ unable to continue her employment, constitutes a ‘misrepresentation’ within the meaning of s.77,(6) of the Acts, such that the Court should broaden its jurisdiction to take account of matters other than the events of 20 May 2019 and to what breaches the Complainant alleges occurred on that date. To do so would, in the view of the Court, stretch the normally accepted meaning of ‘misrepresentation’ beyond credulity. Therefore the Court determines that the Complainant can bring to the Court her complaints that her retirement was, itself, an act of direct discrimination, that it constituted harassment and that it was a failure to provide her with a reasonable accommodation. No other matter is properly before the Court. A hearing will be arranged to consider these three matters, and only these three matters, and the parties will be free to make submissions on these issues.
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