ADJ-00028358

Complainant

Respondent

Anonymised Parties

A Social Worker

A Service Provider

Representatives

Paul Mc Glynn HRS Consultants

Peter Flood

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-00035653-001

10/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00035653-002

10/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 30 and 31 of the Maternity Protection Act 1994

CA-00035653-003

10/04/2020

The complainant commenced employment with the respondent as a Social Worker in January 2011. In May 2014, following the departure of a colleague on career break, she assumed the role of Senior Social Work Practitioner on a fixed term contract. She subsequently went on maternity leave in November 2018. While on maternity leave, she was informed that the fixed term contract would be ending due to the departure from the respondent of the staff member who had previously occupied the role. She was also subsequently made aware that the permanent role of Senior Social Work Practitioner, which arose as a result of the departing staff member, would be moving to a different agency and that she would have to apply for it. In addition, she was informed that she would not be able to return to the original role she had initially worked in with the respondent in 2011.

She is alleging that she was discriminated against because she was on maternity leave when she was informed of the change in her role, that she should have been offered a contract of indefinite duration because her fixed term contract had exceeded four years and that her old permanent role with the respondent should have been made available to her at the end of her maternity leave.

The complainant commenced employment with the respondent as a Social Worker in January 2011. In May 2014, following the departure of a colleague on career break, she assumed the role of Senior Social Work Practitioner on a fixed term contract. She subsequently went on maternity leave in November 2018.

While on maternity leave in June 2019, she was informed that the fixed term contract would be ending due to the departure from the respondent of the staff member who had previously occupied the role and that she would have to apply for the permanent role which had arisen as a result of this departure. She was also informed that she would not be able to return to the original role of Social Worker with adults in which she had initially worked on a permanent basis from 2011 to when she commenced on the fixed term contract in 2014.

She was subsequently informed in a telephone conversation with her line manager Ms A in August 2019 that the permanent role of Senior Social Work Practitioner would be moving to a different agency and that they were going to advertise for it. In subsequent telephone calls with Ms A in August 2019, the complainant expressed her displeasure over the whole situation and when she asked about the permanent role she had previously fulfilled, she was told that no social worker with adults was required by the respondent at that time.

The complainant stated that while the situation was very stressful and unfair, she nonetheless interviewed for the permanent role of Senior Social Work Practitioner with the other agency on 16th September and was successful. As a result, she gave notice of her intention to resign from her position with the respondent on 20th September 2019.

She was subsequently informed by her new employer on 27th September 2019 that her contract of employment would be totally new and that she would be treated as a new employee.

Given the way she was treated, the complainant submitted a formal grievance under the respondent’s grievance procedure. Her complaint was not upheld and despite appealing the decision, the outcome did not change.  

The respondent stated that as a result of a new national policy initiative, a new organisation was made the lead agency for the Children’s Disability Network Teams for the county. This meant that if a permanent employee working with disable children leaves the respondent, then that role transfers to the lead agency, which is then responsible for the recruitment of the new role. As a result, when the resignation of the permanent employee whose position the complainant was filling on a fixed term contract since 2014 took effect in June 2019, the vacancy and the responsibility for filling the permanent role moved to the new organisation.

During her maternity leave, the complainant was kept informed of developments in relation to both the permanent post she had initially worked in with the respondent and the role she was fulfilling on a fixed term contract. Specifically, she was told that the respondent was in the process of devising a new role for her given that the role she had previously occupied on a permanent basis was no longer available. In addition, she was informed on August 22nd 2019 that the permanent role to replace the fixed term role she had previously fulfilled was advertised by the new organisation. The complainant was successful in her application for this new permanent role and she resigned her position with the respondent on September 20th to take up the position.

CA-00035653-001 and  CA-00035653-003:

Preliminary Issue

I highlighted concerns to the complainant’s representative surrounding the jurisdiction of the Director General of the WRC to investigate these complaints on the grounds that they did not appear to comply with the relevant time limits set out in the Acts.

Specifically, Section 77(5) of the Employment Equality Acts makes provision for the relevant time limits for referral of complaints by a person who intends to seek redress under the Acts and provides as follows:

“(a) Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(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 substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

In addition, Section 41 of the Workplace Relations Act provides as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the complaints were received by the Director General. This period can be extended to twelve months in accordance with the provisions of Section 77(5)(b) and 41 (8) of the Acts respectively, in circumstances where the complainant can demonstrate that there was “reasonable cause” which prevented her from referring the complaint within the prescribed time limits.

In examining this issue, I note that the date of the most recent alleged occurrence of discrimination/contravention cannot possibly be considered to be later than 20th September, 2019, namely the date of the complainant’s resignation. Therefore, the cognisable period for the purpose of the complaints is the six-month period prior to the date on which the claim was received by the Director General, namely 20th September, 2019 to 19 March, 2020. The complainant referred the complaint to the Director General however on 10th April, 2020 which was more than six months after the most recent occurrence of the alleged act of discrimination/contravention.

Having made the complainant’s representative aware of this, he made an application for an extension of the relevant time limits in accordance with the provisions of Section 77(5)(b) of the Employment Equality Acts and Section 41 (8) of the Workplace Relations Act. Specifically, he contended that the failure to refer the complaint within the applicable period of six months occurred as a result of the complainant having to cope with the demands of a very small baby and the challenges of starting a new role in a different organisation.

I will therefore proceed to examine the Complainant’s application for an extension of the time limit in accordance with the provisions of Sections 77(5)(b) and 41(8) of the Acts.

The established test for deciding if an extension should be granted for reasonable cause shown is that enunciated by the Labour Court in the case ofCementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. The Labour Court set out the test in the following terms: -

“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.”

It is a matter for the Complainant to establish that there is reasonable cause for the delay. It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay.

The reason put forward by the complainant’s representative in support of her application for an extension of time is based on a claim that she was coping with the demands of a very small baby and the pressures around returning to work in a new job. I note however, from the complainant’s submission and from the direct evidence adduced, that she sought legal advice from a solicitor and also contacted her union, prior to her decision to resign her position with the respondent on 20th September 2019. I also note that the complainant invoked the respondent’s grievance procedure on 8th October, appealed this outcome internally and that the internal appeal process in relation to the matter concluded on 29th November 2019.

Having regard to the totality of the evidence, I am satisfied that I have not been presented with any compelling reasons from which I could reasonably conclude that the Complainant was incapable of referring this claim within the statutory time limit. Therefore, I find that the Complainant has failed to comply with the relevant time limits provided for in Section 77(5) and 41(6) of the Acts and accordingly, I do not have jurisdiction to inquire into the complaint.

CA-00035653-002:

It is not in dispute that the complainant was a permanent employee covering on a temporary basis for another permanent employee for over 5 years. While the complainant asserted that she should have been entitled to a contract of indefinite duration from May 2018 as she had completed more than four years on a fixed term contract, the respondent disputed this and highlighted the decision of the Labour Court in the matter of Dun Laoghaire County Council v Mary Hanrahan FTD172 where it was found that:

The Appellant in the within Appeal appears to accept that at all material times she was employed by the Respondent as a permanent employee and consequently employed on a contract of employment of indefinite duration. However she also maintains that she was for a time during the same period a Fixed Term Worker employed on a Fixed Term contract of employment by the Respondent. These contentions are irreconcilable. This is not a case of the Appellant being employed in two different capacities at different times by the same employer. The Appellant in the within appeal was employed by the Respondent in only one capacity at any one time. At no material time was her employment with the Respondent at risk or under threat.

The Court concludes that at all material times the Appellant was employed as a permanent employee on a contract of employment of indefinite duration by the Respondent and consequently she does not have locus-standi to maintain the within appeal.

Given the facts are virtually identical in the instant case, namely that the complainant is a permanent employee who was also engaged on a fixed term contract, and that her contentions are therefore irreconcilable, I find that she does not have locus-standi to pursue this complaint.

CA-00035653-001: I do not have jurisdiction to hear this complaint

CA-00035653-002: The complaint is not well founded as the complainant was not a fixed term employee within the meaning of the Act.

CA-00035653-003: I do not have jurisdiction to hear this complaint

Jurisdiction; time limit; locus-standi