ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035561
Parties:
| Complainant | Respondent |
Parties | Helen O'Reilly | Mowlam Healthcare |
Representatives | Ms. Claire Bruton BL, instructed by Kane Tuohy Solicitors | Ms. Siobhan MacGowan, Alastair Purdy & Co, Solicitors |
Complaint:
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-00046713-001 | 15/10/2021 |
Date of Adjudication Hearing: 07/11/2022
Workplace Relations Commission Adjudication Officer: Brian Dolan
Procedure:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant commenced employment on 19th August 2011. The Complainant was a permanent, full-time member of staff. The Complainant’s employment was terminated by the Respondent on 15th December 2020, on the grounds of retirement. The Complainant referred the present Complaint to the Commission on 15th October 2021, some ten months later. Herein, she alleged that she her mandatory retirement constituted discrimination on the grounds of age. On this form, the Complainant listed the final date of discrimination as 15th December 2020.
A hearing in relation to this matter was convened for, and finalised on, 7th November 2022. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.
At the outset of the hearing the Respondent raised a preliminary issue as regards the relevant time period for the purposes of the present Act. In particular, the Respondent submitted that as the complainant was referred in excess of six months from the date of dismissal, the complaint is statute barred for the purposes of the present complaint. By response, the Complainant submitted that the final date of discrimination actually occurred within six months of the referral of the complaint form. In addition to the same, the Complainant submitted that the referral of the complaint was delayed due to a misrepresentation on the part of the Respondent. Finally, the Complainant applied to extend the relevant period for the purposes of the present complaint on the grounds of reasonable cause. As this preliminary issue may be determinative of the entire proceedings, it will be considered in advance of the substantive matter. |
Summary of the Complainant’s Case as to the Preliminary Points:
In evidence, the Complainant stated that she was signed a contract containing a retirement age of 65. Notwithstanding the same, the Complainant continued to work beyond this age without any intervention on the part of the Respondent. On 15th December 2020 the Complainant was asked to speak with the newly appointed director of nursing. During this conversation, the director of nursing informed the Complainant that as she had exceeded the contractual retirement age, her services would no longer be required, and her employment was duly terminated. The Complainant’s employment effectively ceased on this date. On 24th February 2021, the Complainant corresponded with the Respondent setting out, in detail, her concerns regarding the termination of her employment. On 2nd March 2021, the Complainant received correspondence from Mr. John O’Neill, the Respondent’s head of human resources, advising that he would investigate the issues. This position was re-affirmed during a phone call between the parties on 13th April 2021. On 13th May 2021, the Complainant received a response from the Respondent. Herein, the Respondent accepted that they were in error in dismissing the Complainant on 15th December 2020 and apologised for the same. It was noted that this correspondence did not offer a the return to work for the Complainant and stated that it was the view of the director of nursing that the Complainant wished to retire, a manifestly incorrect position. Whilst further correspondence was exchanged in relation to this issue, no material progress was made in respect of the present issues. During a phone call of 6th July 2020, the Mr. O’Neill stated that he would not entertain any further discussion around compensation, and that the Respondent would defend the matter. Regarding the preliminary issue raised by the Respondent, the Complainant’s position was that the matter was not statute barred on three separate grounds. Firstly, she submitted that the final date of discrimination occurred within six months of the referral of the complaint. In the alternative, and without prejudice to the foregoing, the Complainant submitted that any delay in respect of the referral of the complaint arose as a consequence of a misrepresentation by the Respondent. Finally, the Complainant applied to have the relevant period of the purposes of the present complaint extended on the grounds of “reasonable cause”. Regarding the first point, the Complainant accepted that the final date of her employment was 15th December 2020, a date on which she was summarily dismissed. Thereafter she engaged in correspondence with the Respondent in relation to the matter, with the Respondent engaging in an investigation of the matter. Whilst this investigation did concede wrong-doing on the part of the Respondent, they refused to either give the Complainant her job back or appropriately compensate the Complainant in respect of the same. The Complainant submitted that conversation represented the final act of discrimination, and consequently the matter was in time. Notwithstanding the foregoing, the Respondent further submitted that the delay in referring the present complaint arose as a result of a misrepresentation on the part of the Respondent. In particular, the Complainant submitted that on 4th June 2021, Mr. O’Neill stated that the Complainant would receive an apology in writing. By further correspondence, the Respondent advised that the apology would be issued thereafter. During a phone call of 6th July 2012, the Respondent stated that they intended to fully defend the present matter. In this regard, the Complainant submitted that the delay in referring the present complaint arose as a consequence of misrepresentation on the Respondent’s part. Finally, and without prejudice to the foregoing, the Complainant applied to for an extension of the cognisant time-period for the purposes of the present Act on the grounds of “reasonable cause”. In this regard the Complainant stated that she was unwell for a period following her dismissal and was unable to refer the present complaint. |
Summary of the Respondent’s Case as to the Preliminary Points:
The Respondent submitted that as the Complainant last day of employment occurred over ten months prior to the referral of the complaint, the matter is statue barred for the purposes of the impleaded Act. In essence, it was submitted that as this was the last day of employment, it was the last date of any act of discrimination. It was accepted that following the Complainant’s termination she engaged with Mr. O’Neil, who then undertook an investigation into the allegations raised. Following said review, Mr. O’Neill accepted many of the points raised by the Complainant and thereafter engaged with the Complainant in good faith in respect of an apology and compensation in respect of the same. At this point, the Complainant was not an employee of the Respondent and could not have been discriminated against under the terms of the present Act. Regarding the allegation of misrepresentation, the Respondent stated that their correspondence of 7th May stated that “I wish to sincerely apologise for you for the manner in which (your dismissal) happened.” In this regard, it was submitted that the Respondent did apologise to the Complainant in respect of the issue and no misrepresentation occurred. It was submitted that rather than misrepresent their position, the Respondent conceded the complaint and entered into a period of negotiation thereafter. Finally, in relation to the application to extend the relevant time-period, it was submitted that in circumstances whereby the Complainant was in frequent contact and negotiation in respect of the present issue, she cannot demonstrate “reasonable cause” for the purposes of the present Act. |
Findings and Conclusions as to the Preliminary Points:
In the present case, it is accepted that the Complainant referred the dispute to the Commission ten months following her dismissal. In such circumstances, the Respondent has submitted that the matter is statute barred for the purposes of the present Act. In contesting this application, the Complainant raised the following points; that the final date of discrimination fell within six months of the referral of the complaint, that the delay was caused by misrepresentation on the part of the Respondent and, finally, the Complainant applied for an extension of time on the grounds of “reasonable cause”. In the event that the Complainant is successful in any these points, the matter will be considered to be in time and the substantive matter will fall to be considered. Regarding the matter of the final act of discrimination, it is common case that the final date of employment was 15th December 2023. Thereafter, the Complainant raised various matters by way of correspondence with the Respondent investigating and ultimately conceding many of the points raised. The Complainant has alleged that the Respondent’s refusal to engage in discussion in respect of the same thereafter constituted a further act of discrimination for the purposes of the present Act. In the matter of Cast v Croydon College [1998] ICR the UK Supreme Court held that, “a further decision can constitute a separate act of discrimination even though it is made on the same facts as a previous decision, providing that there has been a further consideration to the matter and has not merely reiterated or referred back to the earlier decision.” This case was cited with approval by the Labour Court in the matter of Beaumont Hospital -v- Petty Kaunda EDA 1930. Here, the Court held that the presentation of interview notes after the fact did not constitute a further act of discrimination as there was no such “further consideration” of the alleged discriminatory act as outlined above. In the matter of Margaret Hannigan -v- HSE EDA2013, the Court found that an ongoing review of a potential reasonable accommodation for the Complainant constituted a further act of discrimination for the purposes of the present Act. The first point to note in respect of the review that was undertaken by the Respondent is that it conceded the primary points raised by the Complainant in correspondence. In such circumstances, in the event that this review is to be seen as a “further consideration” as set out in Croydon College, such consideration, of itself, cannot be seen to be an act of discrimination on the grounds raised by the Complainant. In addition to the same, it is noted that no employment relationship existed at the time of this investigation. As such, the review in question and subsequent outcome could only refer back to the earlier decision, that being the decision to dismiss the Complainant. Thereafter, the parties entered into a period of negotiation in respect of the matters conceded by the Respondent. Again, it is apparent that the Respondent agreed to issue a form of apology in addition to further compensation to the Complainant. While the Complainant may have taken issue with the form of retribution offered, the same is simply a negotiation between the parties as opposed to any further act of discrimination. The Complainant has sought to rely on an alleged misrepresentation by the Respondent in seeking to explain the delay in referring the present complaint. In this regard, Section 77(5)(a) provides 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.” Section 77(6) goes on to provide that, “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.” Having regard to the foregoing, it is apparent that the Complainant must establish misrepresentation by the Respondent and then demonstrate that the delay in referring the complaint arises by virtue of the same. By correspondence of 24th February 2021, the Complainant takes issue with the manner of her dismissal and asserts that her dismissal on the grounds of her age was fundamentally unfair. Having regard to the same, it is apparent that the Complainant was in possession of all material facts required to refer the present complaint by this date. In this regard it is apparent that the delay in presenting the complaint was not due to any alleged misrepresentation by the Respondent. Whilst I note that parties remained in local discussion regarding the issues thereafter, in the matter of Dublin City Council -v- Skelly DWT212, the Labour Court held that, “…a complainant’s decision to delay referring a statutory complaint to the Workplace Relations Commission beyond the six-month time limit provided for generally in Section 41 of the Workplace Relations Act for the purposes of exhausting an alternative means to resolve their dispute does not constitute reasonable cause for the delay” Finally, in respect to the Complainant’s application for an extension of time, Section 77(5)(b) of the Acts provides that, “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 test for establishing such for “reasonable cause” is that formulated by the Labour Court determination of Cementation Skanska (Formerly Kvaerner Cementation) v Carroll DWT0338. Here 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 claimant 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 claimant at the material time. The claimant’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 claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.” In seeking to ground her application for “reasonable cause” the Complainant stated that she was unwell for a period of time following her dismissal, with medical evidence being opened in support of this submission. Whilst there is no doubt that the dismissal of the Complainant had a significant impact on her, the fact remains that during in the months following her dismissal she was in a position to issue lengthy correspondence to the Respondent regarding the present issues and engage in extensive negotiations thereafter. In such circumstances I cannot find that the reason advanced by the Complainant, of itself, explains the delay in referring the present complaint. Having regard to the accumulation of the foregoing points, I find that the cognisable period for the purposes of the present complaint is 15th April 2021 to 15th October 2021, and consequently my decision is limited to any acts of discrimination that occurred during that period only. In circumstances whereby the dismissal of the Complainant occurred some months prior to the same, and I have found that no act of discrimination occurred thereafter, I find that the Respondent did not discriminate against the Complainant during the cognisable period set out above. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I find that the Respondent did not discriminate against the Complainant during the cognisable period. |
Dated: 18th April 2023.
Workplace Relations Commission Adjudication Officer: Brian Dolan
Key Words:
Delay, Date of Discrimination, Misrepresentation, Reasonable Cause |