ADJ-00030906

Complainant

Respondent

Parties

Richard  Beasley

Central Bank of Ireland

Representatives

  Self

 ByrneWallace LLP

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-00041369-001

02/12/2020

The Complainant applied for a job with the Respondent.  He was not shortlisted for interview.  The Complainant alleges that he was discriminated against on the age ground.

The Respondent submits as follows:

Section 77(5) of the Employment Equality Acts states that “…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.”

The herein complaint is that the Respondent allegedly discriminated against the Complainant in getting a job. The Complainant was notified, by email dated 27 April 2020, that he had not been successful in progressing to the next stage of the Respondent’s recruitment process. The complaint form was received by the WRC on 2 December 2020. The complaint was therefore made outside of the 6 month period provided for in the Acts. No application has been made for an extension of time. The Respondent submits that the Workplace Relations Commission therefore does not have jurisdiction to hear the complaint.

The Respondent submits that the operative date for the purposes of the time limit for referral of complaints to the WRC is the date of the act of alleged discrimination and not the date on which the Complainant received documents in relation to the alleged act of discrimination. 

The Respondent cites the following precedents in support of its position: a decision of the Labour Court in HSE v Whelehan EDA0923and a decision of Laffoy J in the High Court in Minister for Finance v CPSU and others [2006] IEHC 145Tj. 

The Complainant submits as follows:

The Complainant rejects the Respondent’s assertion that his complaint is out of time.

The Complainant submits that when the Respondent emailed him on 27 April 2020 to inform him that he was unsuccessful in his job application, it did not tell him why he was unsuccessful.  He only subsequently became aware of the reason why he was not shortlisted when he sought feedback from the Respondent.

The Complainant contends that he found it difficult to get feedback from the Respondent.  He asserts that an employer could avoid the provisions of the Employment Equality Acts by refusing to give feedback.

Relevant legislation

Section 77(5) of the Employment Equality Act, as amended, provides as follows:

“(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, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director General 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 …”

Section 77(6) of the Act, as amended, provides:

“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.”

In  the herein case, the Complainant submits that the most recent date on which he was discrimination by the Respondent is 4 June 2020 when he received feedback from the Respondent in relation to his unsuccessful job application.  The Complainant further submits that this places him within the time limit prescribed by section 77(5) of the Employment Equality Acts.  The Respondent, however, submits that the most recent date on which discrimination could possibly have occurred, if indeed it occurred at all, is 27 April 2020, the date on which the Complainant was informed that he was unsuccessful in his job application.

I must now decide what is the most recent date on which discrimination could have occurred.  I must then decide if my finding in relation to the date of the alleged discriminated places this complaint within the provisions of section 77(5) of the Acts. 

In making my decision in this case, I am guided by the findings of the Labour Court in HSE v Whelehan EDA0923where the Court considered a comparable case to the herein case where the complainant, similarly to the herein Complainant, submitted that the most recent date of discrimination was the date on which he discovered the occurrence of the alleged discrimination. 

In the Whelehan case the Labour Court posited that “the Court must first consider the meaning to be ascribed to the expression “the date of occurrence of the discrimination or victimisation to which the case relates” as it appears in s77(5) of the Act.”

The Court went on to find that “a time limit of the type in issue is analogous to a limitation period for the bringing of actions in civil law. It is settled law that limitation periods run from the time a cause of action accrues and not from the date of knowledge of the material facts grounding the cause of action unless there is an express statutory provision to the contrary. In that regard the Supreme Court, in Hegarty v O'Loughran [1990] 1 IR, 148 rejected the view that a cause of action accrues when the plaintiff could reasonably discover its existence. The Court held that a cause of action accrues at the time when all the requisite elements of the action existed whether or not the plaintiff knew of their existence.

In considering this question the Court has also had regard to s.5 of the Interpretation Act 2005, which provides: -

5.—(1) In construing a provision of any Act (other than a provision that relates to the imposition of a penal or other sanction)—

(a) that is obscure or ambiguous, or

(b) that on a literal interpretation would be absurd or would fail to reflect the plain intention of—

(i)in the case of an Act to which paragraph (a) of the definition of “Act” in section 2(1) relates, the Oireachtas, or

(ii)in the case of an Act to which paragraph (b) of that definition relates, the parliament concerned,

the provision shall be given a construction that reflects the plain intention of the Oireachtas or parliament concerned, as the case may be, where that intention can be ascertained from the Act as a whole.

Section 77(5) is neither obscure nor ambiguous. Nor could it be regarded as producing an absurd result since its literal interpretation is in line with the generally applicable law relating to limitation periods. Had the Oireachtas intended to provide a discoverability test it could easily have made such a provision. While its literal construction may lead to what might be regarded as an unfair result in some situations that is not a basis upon which it could be regarded as absurd.”

In light of the above, I find that the most recent date on which discrimination could have occurred in this case is 27 April 2020 when the Complainant was informed by the Respondent that he was unsuccessful in his job application and not 4 June 2020 when the Complainant received feedback from the Respondent.

Accordingly, I find that the within complaint was referred to the WRC outside the prescribed time limits.

I find that the herein complaint was submitted outside the statutory time limit prescribed at Section 77(5) of the Employment Equality Acts and, therefore, I do not have the jurisdiction to investigate this complaint.

Employment Equality – recruitment – out of time