FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : CENTRAL BANK OF IRELAND (REPRESENTED BY MR. LOUGHLIN DEEGAN B.L.) - AND - RICHARD BEASLEY DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S)ADJ-00030906 CA-00041369-001 This is an appeal by Mr. Beasley, ‘the Complainant’, of a Decision by an Adjudication Officer, ‘AO’, under the Employment Equality Acts 1998-2015, ‘the Acts’, regarding a complaint against the Central Bank of Ireland, ‘the Respondent’. The AO noted that the complaint was related to the marking system used in a selection process for a job with the Respondent, that he was notified that he had been unsuccessful in his application on 27 April 2020, that he submitted his complaint on 2 December 2020 and that this was more than 6 months since the date of occurrence of the alleged discrimination. The AO decided that, in accordance with s. 77(5) of the Acts, the complaint was submitted outside of the time limits prescribed in the Acts. The Complainant appealed to this Court. The Court convened a hearing to consider only the issue of the application of time limits as a preliminary matter to be determined, with the provision that, if the Court was to decide that it had jurisdiction to hear the case, a subsequent hearing could be convened to consider the substantive arguments. Summary of Complainant arguments The AO was incorrect to find that the complaint was submitted outside of the 6 months’ limit. The date of the most recent occurrence of discrimination was 4 June 2020 when the Respondent sent an e-mail to the Complainant with the scoresheet that is the basis of the complaint. The complaint was submitted within 6 months of that date. In the event that the Court agrees with the AO Decision, the Complainant seeks an extension of time as provided for in s.77(5)(b) of the Acts. Summary of Respondent arguments The Complainant was notified on 27 April 2020 that his application was unsuccessful. The complaint was received by the Workplace Relations Commission on 2 December 2020. That is outside of the prescribed 6 month period. The Complainant made no application to the AO for an extension of time. The Labour Court does not have jurisdiction to consider any such application that was not made at first instance. The Court’s jurisdiction is limited to hearing appeals from an outcome of such an application that has been made to an AO. In the alternative, the Complainant has made no argument for an extension of time and has not met any part of the test set out inCementatation Skanska v Carroll DWT0338. The applicable law Employment Equality Acts. s. 77 (5) (a) Subject toparagraph (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 Commissionor Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainantparagraph (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. (c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term. Deliberation The Respondent draws the Court’s attention to the case ofHSE v. Whelehan EDA0923in which it was observed that time limits in cases such as this are analogous to the limitation period for actions to be brought in common law, unless there is a statutory provision to the contrary. InHegarty v. O’ Loughran (1990) 1 IR, 148the Supreme 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 applying this principle to the instant case, the Complainant received notification on 27 April 2020 that his application was unsuccessful. He secured information from the Complainant on 4 June 2020. It is arguable as to whether the latest date of the occurrence of alleged discrimination is the date on which the Complainant’s application was marked by the Respondent or whether it is the later date of 27 April 2020 when he was advised of his lack of success. What is certain, however, is that it most certainly is not, when applying the logic of the Supreme Court above, the even later date of 4 June 2020. The complaint was received after the prescribed period of six months. In the alternative, the Complainant asks the Court to utilise its powers under s. 77(5) (b) to extend the six months to 12 months. The Respondent argues that the Court does not have jurisdiction to consider this application as no such application was made to the AO. Alternatively, it is argued that no argument has been made for this extension to be granted. It is not necessary for the Court to give consideration to the legal point regarding its jurisdiction as it is a fact that, as the Respondent argues, no argument has been made to the Court that would allow it to consider whether or not the extension sought should be granted. As the Court noted in ‘Cementation Skanska’, cited above, ‘..it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay’. While some allowance must be made for the fact that the Complainant had no representation, he has put forward no arguments that could be deemed to have met either of these requirements. Rather, he argued that he submitted his complaint in time but, as a fall back, he simply asked the Court to utilise its powers to grant an extension. In the absence of any reasons being offered, the Court cannot grant the extension sought. In summary, therefore, the complaint was received outside of the prescribed six months and no reasonable cause has been shown that would justify an extension to 12 months being granted. Determination. The Decision of the Adjudication Officer is affirmed.
NOTE Enquiries concerning this Determination should be addressed to Nuria de Cos Lara, Court Secretary. |
