Complainant

Respondent

Parties

Geraldine  Kinsella

Dublin City Council

Representatives

James Mc Evoy Work Matters Ireland

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-00047453-001

02/12/2021

The Complainant commenced employment with the Respondent in May 2001.  The Complainant submitted a complaint under the Employment Equality Act, 1998 which was received by the WRC on 2 December 2021. An in-person hearing took place on 23 June 2022.

The Respondent puts forward that the complaint is out of time. 

The Respondent submits that the Complainant made a complaint on 9 October 2017.  An investigation into this complaint was completed in April 2019. The Complainant appealed the outcome of this investigation.  The appeal was not upheld.

The Complainant subsequently lodged a complaint with the WRC under the Employment Equality Act, on 7 November 2019.  This complaint was withdrawn by the Complainant and the Respondent was notified of the withdrawal by the WRC on 6 January 2020.

The Complainant lodged two other complaints to the WRC on 14 February 2020, both under Section 13 of the Industrial Relations Act.  The first complaint related to Bullying and Harassment Procedures. The second complaint related to regularising “acting up” arrangements. The second complaint had been resolved and was considered to be withdrawn at the time of the hearing of the complaints.  A Adjudication Officer’s Recommendation regarding these complaints was issued on 26 July 2021. The Recommendation included a recommendation that an independent investigator be appointed to review the investigative process relating to this case and three agreed nominees were included for selection.

The Respondent submits that it is committed to complying with and implementing the WRC Recommendation of 26 July 2021. They have, to date, engaged with the first two of the three agreed nominees to carry out the recommended review of the investigative process in relation to this case. However, the first nominee was not available to do the review. The second nominee’s costs were deemed to be excessive.  Because of this the Respondent proposed approaching the third nominee.  When this suggestion was put to the Complainant’s representative it was rejected and the representative insisted the Respondent must appoint the second nominee.  No agreement was reached on this matter and the Complainant’s representative stated it was their intention to refer the matter to the Labour Court.  This stalled any further progress on the implementation of the WRC Recommendation of July 2021.

The Respondent emphasises that the purpose of the Recommendation of July 2021 is not to re-examine the original complaint made by the Complainant but to review the investigative process to identify improvements that could be implemented in the future.

The Respondent submits that the Complainant’s failure to consider the appointment of the third nominee, approved by the WRC and the parties, is clearly at variance with the WRC Recommendation to appoint an external expert to review the investigative process.

The Respondent submits that the timeframe for the taking of this complaint under the Employment Equality Act has expired given the time that has elapsed since the alleged incident, the original complaint by the Complainant, the completion of the independent investigation and appeal process and the subsequent submission (December 2019) and withdrawal (January 2020) of the complaint to the WRC under the Employment Equality Act. The current complaint was received by the WRC on 2 December 2021

The Complainant submits that, the Respondent’s failure to comply with the recommendations issued by the WRC in May 2021, is a further act of discrimination and/or victimisation and another attempt to deny the Complainant of her right to a fair and impartial examination of her complaint of sexual harassment. The Complainant submits that the most recent date of discrimination took place on 2 November 2021, when she was informed that the Respondent would not be following the WRC recommendations.

The Complainant submits that although she has not refused to engage with the Respondent’s second nominee, she has no confidence in the selection process and believes that again there is a pre-existing relationship that is likely to bring a biased view to the External Review.  She feels the Respondent’s concerns regarding the cost of appointing the second nominee as stated by the Respondent are insincere and that there did not seem to be the same concerns about costs when others were appointed to manage the Investigation into her complaint and other matters within the Council.

From the foregoing, it is clear that this complaint relates to an alleged failure by the Respondent to implement an Adjudication Officer’s Recommendation, issued on 26 July 2021, under Section 13 of the Industrial Relations Act, 1969.  This in an industrial relations matter and should be dealt with as such; appropriate mechanisms are available to the Complainant to appeal the alleged non-implementation of the Recommendation.  I find this complaint is misconceived

The complaint is misconceived.

Misconceived