Complainant

Respondent

Parties

Edmund  Gillespie

Dromore National School

Representatives

  The complainant represented himself

Mason Hayes & Curran

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-00031965-001

02/11/2019

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

CA-00031966-001

02/11/2019

The complainant has been employed as an LS/Resouce Teacher since January 2002.The complainant lodged duplicate complaints of discriminatory treatment on the grounds of gender by failing to promote him in a competition for the position of Assistant Principal 1 at his school.He submitted that he had superior academic qualifications and more relevant teaching experience than the successful female candidate for the post.He submitted the most recent date of discrimination was the 19th.Nov. 2018.

The respondent submitted that the complaint was statute  barred and consequently I had no jurisdiction to investigate the complaint.It was submitted that the complainant was not treated less favourably than another person is , has been or would be treated in a comparable situation in Section 6(2) and in particular on the grounds of gender and it was contended that therefore discrimination cannot be taken to have occurred.

The hearing focused on the preliminary point raised by the respondent as to whether the complaint was out of time.

The Complainant’s complaint was received by the WRC on the 2nd.Nov. 2019.In his complaint form he made the following  references to time limits

“ There are three further instances that I can point to regarding the procedures at our school where gender discrimination has worked against me. These fall outside the time limit of this complaint. I have tried to appeal the decision of the selection panel, but was unsuccessful. I believe that this is because I was only permitted to question procedural issues, not suitability, experience or qualifications. I realise that there is normally a 6 month window during which complaints should

be made. I would argue for exceptional circumstances due to issues relating to my personal circumstances. My mother died of cancer just over 2 years ago. At the moment my elderly father is dying of prostrate cancer and is being attended by family members at home. He has been on a serious downwards trajectory for the past 8 months. I did not realise that I had a time limit initially, and it was only when I was referred to a story in the newspapers regarding a similar case of Gender Discrimination in Sligo that I became aware of the time limits. In these circumstances I would ask for consideration.”

The complainant furnished the WRC with the following time line in relation to his complaints;

“8/11/18 Interview for AP 1 Post

9/11/18 Notification of failure at interview .

Publication  of notice detailing offer of AP 1 post to the successful candidate  provided that an appeal in writing by an unsuccessful candidate against the proposal has not been lodged with the Chairperson of the Board of Management within ten school days of the publication of this notice , November 9th.2018

-Even though this is dated 9/11/18, many staff say it was not posted until 14/11/18

23/11/18 Deadline for delivery of notification of Appeal

Appeal lodged with School and directly to Chairperson of the Bard of Management

9/03/2019Notification of Appeal received at home .Date set at Thurs14/03/19

3/04/2019New date for Arbitration Board Meeting , as I couldn’t make earlier due to family commitments

6/04/19Notification of failure at Appeal

2/11/2019Posted notification of complaint to WRC.”

The complainant wrote to the WRC on the 6/11/2019 stating that as supporting material he was submitting a latter dated the 04/04/19 which supported the view that the post at issue was not allocated until after the appeal process had been completed .He went on to say that “ By adding on the 6 months during which complaints should be lodged we arrive at a deadline date of October. However , we are now a month later in November. I respectfully ask that you take into consideration the circumstances which I outlined in my online submission regarding personal family circumstances. ”The  document – dated 4.09.2019 – he attached , was the letter from the Chairperson of the Arbitration Board to the complainant advising  him of the rejection of his appeal.

At the hearing the complainant submitted  that the question as to whether or not the complaint was out of time was a matter for determination. The date of the interview was the 8.11.2018 .It was submitted that the last date of discrimination was  when   the job was allocated and given to the successful candidate .The complainant stated that his interpretation was that the respondent was being  given a chance to reverse their intention to discriminate and the date was the 6th.March 2019 – 6 months added brought the time to the 6th.October 2019.The complainant went on to say that he posted his complaint to the WRC on the 2nd.Nov. 2019 – on the basis of his calculation and the date of the final instance of discrimination , he stated he was seeking a one  month extension of time. He referred to the seminal determination of the Labour Court DWT0338 Cementation Skansa  v Carroll and said that the case meant a lot of things – the delay must make sense and cannot be irrational or absurd. The complainant said that from his own personal perspective his mother had died and his father had since died. His father was aware of his discontent with the school. His father had some experience and knew how he was affected by things that went on within the school. He stated that in his dying days his father encouraged him to take a case .He was busy caring for his father and believed it was only reasonable that he could take time out for his caring responsibilities. The complainant stated that he learned of a case with similar aspects in Collooney – discrimination had been highlighted where qualifications and experience were examined. The complainant decided to lodge the complaint 9 days before his father died. He understood it was outside the time limit but it was not absurd for him to be caring for his parents. The complainant reiterated that he was arguing reasonable cause. He clarified that his mother died in 2017  and that his father died 9 days after he made the complaint to the WRC. The complainant said he was given 10 days to lodge an appeal against the outcome of the interview process and he set out the chronology of the appeal process .He stated that complaints were confined to matters of procedure and it was found that there was no case to answer. He stated that discriminatory treatment was not investigated . The complainant confirmed that he had lodged the appeal in accordance with Circular 10063/2017 and the respondent highlighted that Section 21.2 subsection 6 specifically provided that

“ A candidate who believes he/she has been discriminated against contrary to the

Employment Equality Act may process a claim in accordance with the provisions

of the legislation.”

Under cross examination the complainant was asked about compassionate leave when his mother died and confirmed that he took 3-4 weeks off after her death. He  confirmed that he continued to work throughout his father’s illness and shared the caring work with his family. He confirmed he was able to work by enlarge .The complainant stated that he had blood pressure and when asked by the respondent’s representative he confirmed that this did not prevent him from working. The complainant confirmed that in his letter of appeal he had referred to nepotism within the school. The complainant agreed that he had lodged a data access request  and clarified that his union the INTO had advised him on some elements of his complaint. The complainant confirmed that he lodged his appeal in accordance with Circular 10067/2013 where it was put to him that there was a specific reference contained therein to processing a complaint in accordance with legislation.The complainant advised that the INTO asked him if he thought the questions at interview were discriminatory and he replied  that he didn’t think so at that time. It was put to the complainant that the Sligo case involved a different set of circumstances .It was put to the complainant that his fathers illness did not prevent him from lodging a complaint and the complainant replied that his father was agitated and encouraged him to pursue it. He said while he initially did not think he was being discriminated against , when he saw the Sligo case , he compared his qualifications and experience with the successful candidate .

When asked if he accepted the competition was competency  based , the complainant disagreed and argued that he had to demonstrate experience. In response to the employer’s submission the complainant asserted that the qualifications of the successful candidate  did not compare to his.He acknowledged that the facts in the Sligo case were different to the instant case.The complainant went on  to give a chronological account of the appeal process. He advised that he was asked in the course of the appeal if he thought he had been discriminated against and he replied no. He stated that he was also asked if the questions asked by the Interview Panel were discriminatory  and he responded in the negative. The complainant advised that he had no issue with the questions.

The respondent’s representative set out a chronology of the recruitment process – from the date staff were first notified of the new Assistant Principal post , the consultation with staff , the interview process and the ensuing appeal when the complainant was notified on the 4th.April 2019 that his appeal was rejected. It was submitted  that the complainant when he complained to the WRC on the 2nd.Nov. 2019 stated that the most recent date of discrimination was 19th.Nov.2018 , almost 11.5 months prior to lodging the complaint and 5.5 months beyond the statute date .It was submitted that the complainant was asserting that the clock should not start running until the notification of the rejected appeal on the 4th.April 2019 and this was still 7 months prior to lodging the complaint and one month after the statute date.

It was submitted that the date of occurrence of the alleged discrimination was the 8.Nov  2018 when the decision was made to appoint the successful candidate and not April 19 after the conclusion of the appeal.The provisions of EDA177 Brothers of Charity Services v Kieran O’Toole  and EDA 1920 An Garda Siochana v Alan Melia were invoked in support of this contention.It was submitted that it was clear that the claim was seriously out of time – by almost 6 months and at the very least one month.

It was submitted that the established test for deciding if an extension should be granted for reasonable cause is set out in WTC0338 Cementation Skanska v Carroll.It was advanced that the test was set out in the following terms :

“ It is the Court's view that in considering if reasonable cause exists, it is for the

complainant 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 complainant at the material time. The complainant’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 complainant should satisfy the Court,

as a matter of probability, that had those circumstances not been present he

would have initiated the claim in time.

 The respondents representative invoked the provisions of  Department of Employment Affairs and Social Protection v Garvan Harper3- the Labour Court noted that the length of the delay should be taken into account and that a short delay may require only a slight explanation whereas a long delay may require more cogent reasons. The Court also held that where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. In this case, the delay was almost six months.

It was submitted that the Labour Court in Salesforce.com v Leech4 held that:

“It is clear from the authorities that the test places the onus on the applicant for

an extension of time to identify the reason for the delay and to establish that

the reason relied upon provides a justifiable excuse for the actual delay.

Secondly, the onus is on the applicant to establish a causal connection

between the reason proffered for the delay and his or her failure to present the

complaint in time. Thirdly, the Court must be satisfied, as a matter of

probability, that the complaint would have been presented the complaint in time

were it not for the intervention of the factors relied upon as constituting

reasonable cause. It is the actual delay that must be explained and justified.

Hence, if the factors relied upon to explain the delay ceased to operate before

the complaint was presented, that may undermine a claim that those factors

were the actual cause of the delay.

Finally, while the established test imposes a relatively low threshold of

reasonableness on an applicant, there is some limitation on the range of issues

which can be taken into account. In particular, as was pointed out by Costello

J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should

not extend a statutory time limit merely because the applicant subjectively

believed that he or she was justified in delaying the institution of proceedings”.

.

It was submitted that the complainant must therefore show that the reasons he has cited for his failure to refer the claim to the WRC in time , both explain the delay and afford an excuse for the delay of almost 6 months and that the complainant would have presented the complaint in time were it not for the intervention of the factors  relied upon  as constituting reasonable cause and explaining and justifying the actual delay.

It was submitted that while the ill health or death of a parent is distressing for anyone , the complainant had not claimed that he himself was sick or incapacitated  or suffering a disability  during this time. It was advanced that the complainant continued to work in a challenging job and was in a position to pursue his appeal as set out in circular 10063/2017.The respondent’s representative referenced ADJ-00031458 where  an application to extend time  on foot of a custodial sentence  was rejected  by the WRC – the Adjudicator had noted that the complainant was capable of filing an appeal with his employer against his dismissal within the requisite time frame , when he was in prison while claiming that he was unable to instruct his solicitor or refer his complaint himself to the WRC within the time frames of the Unfair Dismissals Acts.

It was submitted that it has long been acknowledged that ignorance of the law is no defence and that the complainant’s ignorance of the law cannot be an excuse for a failure to make his complaint on time and/or cannot ground an application for an extension of time .It was submitted that Laffoy J .had held that ignorance of the law could not be a justification  for an extension of time in ELR 36 IEHC Minister for Finance v Public Services Union and others [2007].

It was submitted that in case EDA2011 , a claim for discrimination on the grounds of gender involved a delay of 2 months in making a claim. The complainant had contended that he had not been advised that he could make a complaint under the Act and that his union had incorrectly advised him in that regard. The Labour court had considered other steps the complainant had taken during  the relevant  time  frame including consideration of mediation , a grievance procedure and arbitration. The Court did not extend the time frame , concluding that the complainant had failed to demonstrate reasonable cause for the delay in making the complaint.

It was submitted therefore that the complainant’s reasons  did not demonstrate reasonable cause and accordingly there was no jurisdiction to investigate the complaint.

The Chairperson of the Board of Management gave evidence on the appeal process and confirmed the process complied with DES circular 10063/2017.It was submitted that none of the grounds advanced by the complainant for the 5.75 month delay in making the complaint constituted reasonable cause. It was submitted that the complainant had been in receipt of advice from the INTO and that in his own evidence he had confirmed that he did not think he had been discriminated against at the time. This had been prompted by the Sligo case that had been referenced by the complainant. It was submitted that circularDES 10063/2017 which the complainant had followed to lodge his appeal  made specific reference to referral of complaints under the Employment Equality Acts.

I have reviewed the evidence presented at the hearing and the submissions advanced by the parties. I have also considered the authorities relied upon by the complainant and the respondent. Both  duplicate complaints CA-00031965 and CA-00031966 were received by the WRC on the 2.11.2019.Having considered the time frames set out by both parties I am satisfied that the cognisable period commenced on the 9th.Nov.2018 when the claimant was notified of the outcome of the interview - which was the subject of the complaint. Accordingly , the cognisable period runs to the 8th.May 2019.This is consistent with the findings of the labour Court in EDA An Garda Siochana v Alan Melia where the Court determined that the cognisable period starts from the date of notification of the results of the competition and “the pace at which successful candidates were or were not appointed has no bearing on the point at issue”. In EDA 2011 , Department of Employment Affairs and Social Protection v Garvan Harper , the Labour Court took into account the other steps the complainant had pursued during the cognisable period. I consider it of particular significance  that during this  time frame the complainant pursued his appeal against the outcome of the interview process , that arising from same the claimant would have had access to the provisions of DES Circular10062/2017  and that he was in receipt of advice from his trade union.

I have considered the complainant’s submissions about the death of his mother  in 2017 , the time spent caring for his father during his terminal illness and his subsequent death and accept his evidence of the challenges these tragic events posed for him. However ,  given the claimant’s evidence that he was motived by the encouragement from his father to take a case and was influenced by the media coverage of the Sligo case , I find that these factors  explain the complainant’s motivation for making the complaint but do not explain or justify the delay in making the complaint. Accordingly , I find that the claimant has not met the test of reasonable cause set out in WTC0338 Cementation Skansa v Carroll  and consequently I deem  the complaint  to be out of time.

The complaint is statute barred and accordingly I have no jurisdiction on the matter.

Time Limits /Cognisable Period