Complainant

Respondent

Parties

Jacqueline  Byrne

Department of Justice

Representatives

Brian Murray, B.L. instructed by Joseph Dolan Chief State Solicitor's Office

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-00039958-001

20/09/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complaint and three witnesses for the respondent gave evidence under affirmation.

The WRC facilitated the attendance of a member of the public at this hearing.

In the interests of open disclosure, the adjudicator indicated that he had previously worked with agencies connected to the respondent in the past - more than 10 years prior to the hearing, and briefly with the respondent for a period of approximately 6 weeks some 15 years prior.  He enquired of the parties as to whether they had any objection to his hearing this matter.  Both the complainant and the respondent indicated that they had no objection to proceeding with the case.  Accordingly, the hearing took place.

The respondent indicated that they wished to raise a preliminary matter, that of time limits which would have an impact on the further hearing of evidence.

In her initial complaint form, the complainant submitted that she was discriminated against on grounds of Gender and Age in relation to the provision of training.  The complainant submitted that she failed her three-month review but that she had not been provided with the appropriate training. In her initial complaint form she also noted that she communicated with HR on this matter but “unfortunately the appeal process had been completed on documents which were submitted which were both misleading and falsified.

In response to the respondents’ submissions regarding time limits, the complainant was asked to provide a date for discrimination that took place.  The complainant indicated that she was discriminated against on 9 January, she also indicated that that she was discriminated against in the documentation used in the appeal which she received in February 2020.  The complainant also provided the end of her employment on 20 March 2020 as the latest date of discrimination.  She further clarified that discrimination had taken place in April and June, 2020.

The respondent submitted that the complaint was time-barred in that the complainant had indicated that the that the last date she was discriminated against was 9 January 2020.  The complainant’s compliant form to the WRC is dated 18 September 2020.

The respondent submitted that Section 77(5)(a) of the Act states that

(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.

The respondent submitted that the complainant’s complaint contravenes this provision.  The respondent submitted that the complaint relates to the provision of training and this training concluded on 9 January 2020.  The respondent submitted that the complaint taken did not relate to the appeals process or to any HR intervention as outlined by the complainant in her oral evidence.

The respondent also submitted that although it is possible to extend the period for the reference of a complaint, this is only where there is a reasonable cause.

 (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 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.

The respondent submitted that in correspondence with the respondent dated 12 March 2020, the complainant indicated her “intention to proceed within the next few weeks to the WRC in relation to my claim of discrimination”.  The complainant failed to do so and suggested that this undermined any possible argument relating to reasonable cause such as to provide for an extension of the time limits under the legislation.

The respondent raised the issue of the time limits contained in the Employment Equality Acts, 1998 as a preliminary issue.  The respondent noted that the complainant has given in the complaint form ground this complaint was 9 January 2020.

When asked as to the nature of the discrimination, the complainant indicated that she was discriminated against by a male supervisor and indicated that basis for this as being ‘that she was a female, and he was a male’.

In addition to the specified dates of January 9, and 13 January and the end of her employment on 20 March, the complainant indicated a few general dates in April and June when she was discriminated against but when asked to clarify what the act of discrimination was, she was somewhat vague and provided the date following a meeting with her union representative, post-employment, as the date of discrimination but gave no detail about what the discriminatory act was.

The complainant also indicated that she considered that the appeal process based on ‘false and misleading documents’ was discrimination.  However, I note that this element was not advanced in the complaint form grounding this complaint.  I also note that the complainant identified the people she primarily dealt with throughout the appeal process as being female and when this aspect was queried, she referred to the documentation drawn up by her former line manager a male, which she received sometime in February 2020.

I also note that the respondent pointed out that the form relates specifically to discrimination in relation to training the complainant received rather than the appeals process or HR interventions as being claimed at hearing as providing the most recent acts of discrimination.

Section 77 (5) (a) and (b) of the Employment Equality Acts, 1998 govern the of the

(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 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 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.

Although the complaint form is dated 18 September, the complaint form was received on 20 September 2020.    Having considered all the written and oral evidence put forward by the complainant and the respondents’ arguments as to the date and composition of the alleged act discrimination, I am satisfied that the complainant has not established the existence of an act of discrimination on a date within the 6 months preceding the date upon which she lodged her claim with the Workplace Relations Commission.  Furthermore, in circumstances where the complaint had indicated an intention to pursue a complaint to the WRC in March and was in receipt of advice from her union at various points throughout the intervening period, I am not satisfied that the complainant has not established reasonable cause such as to extend the period of consideration under Section 77(5)(b) of the Employment Equality Act, 1998

Having regard to the foregoing, I find that the complaint was lodged outside of the time limits laid down in the Act.

Having considered all the written and oral evidence submitted in relation to this complaint, my decision is that the complaint was not lodged with the time limits outlined in the Employment Equality Act, 1998.

Employment Equality Act – time limits – out of time