FULL RECOMMENDATION
PARTIES : ECOMM MERCHANT SOLUTIONS LIMITED DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No ADJ-00014913, CA-00019406-001. This is an appeal by Mr Necati Hakan Erdogan (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00014913, dated 28 May 2019) under the Employment Equality Act 1998 (‘the Act’). The Notice of Appeal was received by the Court on 26 June 2019. The Court heard the appeal in Dublin on 6 October 2021. The Complainant’s originating claim under the Act was received by the Workplace Relations Commission on 24 May 2018. The Complainant’s employment with EComm Merchant Solutions Limited (‘the Respondent’) had terminated on 14 February 2017. The Adjudication Officer found that the complaint under the Act was statute-barred and there was no basis for extending the time within which to bring the complaint. Factual Matrix The Complaint commenced employment with the Respondent as an Integration Specialist on 23 November 2015. He was dismissed for gross misconduct on 14 February 2017. Thereafter, he submitted a complaint under the Unfair Dismissals Act 1977 to the Workplace Relations Commission. That matter came on for hearing before an Adjudication Officer on 15 January 2018. The Complainant withdrew his complaint under the 1977 Act in the course of that hearing. He then submitted a complaint against the Respondent under the Equal Status Act 2000 on 29 January 2018. This complaint was subsequently withdrawn by the Complainant. As stated previously, he then referred the within complaint to the Workplace Commission on 24 May 2018, some fifteen months after his employment with the Respondent had been terminated. Complainant’s Submission The Complainant submits that his delay in referring the within complaint can be explained by reference to alleged misrepresentations made by the Respondent which came to light at the hearing of his unfair dismissal complaint on 15 January 2018. He is, therefore, invoking section 77(6) of the Act and seeking an extension of time within which to bring his complaint on the basis of that subsection. Respondent’s Submission The Respondent submits that the Complainant has not adduced any evidence of misrepresentation on its part and section 77(6) of the Act has no application in the circumstances of the within appeal. Without prejudice to the foregoing, the Respondent submits that the matters aired at the hearing before the Adjudication Officer on 15 January 2018, as part of the Respondent’s defence of the Unfair Dismissals complaint, were comprehensively articulated in the Respondent’s initial written response to the complaint dated 19 April 2017. The Law Section 77(6) of the Act provides: “(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.” Discussion and Decision Having considered the Parties’ written and oral submissions, the Court is satisfied that the alleged misrepresentation that the Complainant relies on in seeking to invoke section 77(6) of the Act could not have occurred any later than 19 April 2017. The Complainant, nevertheless, chose to proceed to a hearing of his complaint under the Unfair Dismissals Act 1977 in January 2018 and did not seek to refer a complaint at that time under the 1998 Act, either in addition to, or as an alternative to, his first complaint in time. Some two weeks after the complaint under Unfair Dismissals Act came on for hearing, the Complainant referred a complaint under the Equal Status Act 2000. This appears to have been a misguided referral and was subsequently withdrawn by the Complainant when he realised his error. He then delayed a further four months before referring the within complaint under the 1998 Act. In the light of the foregoing, the Court finds that section 77(6) of the Act has no application to the facts of the within appeal and cannot avail the Complainant to justify the manifestly late referral of his complaint under the Act. The decision of the Adjudication Officer is, therefore, upheld. The Court so determines.
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