Complainant

Respondent

Parties

Ann Maria  Desmond

Health Service Executive

Representatives

 Comyn Kelleher Tobin

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00051065-001

09/06/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00051065-002

09/06/2022

There are two complaints under the Employment Equality Act: one of discrimination and the other related to equal pay.

A preliminary issue arises about whether the complaints are within jurisdiction. In general, (although there are exceptions) when such issues arise, a decision on the preliminary issue will be reserved and the hearing will proceed to the substantive issue.

Then, in the event of the preliminary issued being decided in the respondent’s favour (as they are normally raised by a respondent), that will determine the matter and a decision will issue.

There were three preliminary issues raised by the respondent.

The first is that the matter at the centre of the dispute had been previously resolved amicably and by agreement with the complainant.

The second is that she has not advanced any prima facie case of discrimination in respect of the alleged discriminatory provision in the contract of employment.

The third is that she has not made her complaints within the statutory time limits.

In this case, and as the facts related to the preliminary issues cross over into the substantive issues and were well ventilated during the hearing, I adjourned the matter on the basis that, if the preliminary points on jurisdiction were upheld, I would proceed to issue a decision on that basis.

If they were not upheld, I would decide to either proceed to a substantive decision on the basis of what had already been submitted and heard in the course of the hearing, or if I deemed it necessary to hear further evidence, I would re-convene the hearing.

This approach was agreed by the parties.

As I have determined the preliminary issue in the respondent’s favour and upheld its challenge to jurisdiction and only the arguments on the preliminary issues follow.

The complainant gave evidence on affirmation and submitted that there had been discrimination against her on her return to work from maternity leave in 2014.

In her absence, some posts have been ‘regularised’; (a term to describe the process of confirmation in their posts of those in long term, continuous acting up positions).

She then sought to be included in this process on her return to work in 2014. Her position had been overlooked at that time.

She says that this resulted in discrimination that is continuing to this day.

Her complaint on equal pay is based on a desire to be placed on the same grade as a number of identified colleagues graded at the promotional level, CNM2. Several comparators were identified

The complainant is employed as a staff nurse in Cork and began her employment with the respondent on June 15th, 2009. She has lodged two complaints with the WRC on June 9th, 2022, under Section 77 and Section 86 of the Employment Equality Act 1998.

Following an earlier referral to the WRC an agreement was reached between the parties for her role to be “red-circled’ so that she was to move to a Clinical Nurse Manager (CNM1) Grade.  The terms of this ‘full and final settlement’ of May 10th, 2017 and June 23rd, 2017 were submitted to the hearing. They were agreed on the complainant’s behalf by her trade union. 

A revised contract and job description were then sent to the complainant on 24th July 2017

Thereafter the complainant raised an issue about her reporting relationship as she asserted that she should be reporting to the ADON and not the CNM2 and CNM3 as setoutinherrevisedcontractofemployment.

The respondent clarified the query raised by the complainant on 14th November 2017. 

While she refused to sign the new contract of employment, she remained employed at a staff nurse grade. The complainant did not submit any formal grievance or complaint under any of the Respondent’s internal procedures.

On June 25th, 2021, a dispute was referred to the WRC it by the complainant’s union and the dispute was described as one “regarding the regularisation of CNM2 post with full payment of salary owed…”

On September 23rd, 2021, the respondent wrote to the WRC to note that this matter had already been referred to the WRC and therefore it would not engage in further conciliation. On January 17th, 2022, the complainant’s representative (SIPTU) wrote to the Area Director of Nursing seeking regrading to a CNM2 role.

On February 23rd, 2022, the respondent wrote to SIPTU setting out the background of negotiations and reiterating the agreed settlement reached in 2017.  As a result, the complainant’s union representatives withdrew from the case at this point and the complainant pursued the matter on her own.

The respondent then received notification of an equality claim by the complainant on 15th April 2022. The relevant complaints were then submitted on 9th June 2022

The respondent submits that the complaint should be dismissed on the grounds that it is frivolous and vexatious and seeks a determination in that regard, pursuant to section 42(1) of the Workplace Relations Act 2015 which empowers an adjudication officer to,

 “at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious”.

The respondent raises three preliminary issues as follows.

These complaints are an attempt to reopen a claim previously made to the WRC and resolved on a without prejudice basis. The complainant has claimed that she is a CNM2 grade employee of the respondent. This is plainly incorrect and the complainant is employed as a Staff Nurse.

It was and is intended that pursuant to a without prejudice agreement, the complainant would move to a CNM1 Grade. However, the complainant has failed to uphold the terms of said agreement and now claims that by virtue of the Employment Equality Acts, her role should be further amended to a CNM2 Grade.

The terms of the ‘Without Prejudice Agreement’ have been submitted by the complainant in spite of the fact that they were executed on a without prejudice basis. The complainant received payment of a retrospective sum in respect of this movement from staff nurse to CNM1, covering the period 23rd June 2016 to 23rd June 2017.

It is also noted that the payment made by the respondent to the complainant under the terms of the Without Prejudice Agreement reflects consideration for the commitments of the parties to be bound by its terms. Accordingly, the respondent submits that the WRC does not have jurisdiction to hear the complaints as the matter has already been settled.

The first element of the complaints is a claim that her employment agreement contains a discriminatory provision.

The complainant has put forward no evidence of any such provision or indeed any relevant collective agreement and accordingly, the burden of proof remains firmly with her to establish whether any such provision exists.

In any event, both complaints must be presented to the WRC within six months of the alleged contravention.

The complainant alleges a continuum of discrimination but fails to identify the continuing breaches alleged which give rise to fresh grounds to bring the complaints. They were lodged on June 9th 2022 however the issues raised in the complaint form relate to engagement in 2017 and proceedings which were withdrawn on 29th June 2017.

It is therefore submitted that the cognisable period is the 6-month period prior to June 9th, 2022 i.e.– 10th December 2021. Accordingly, it is submitted by the Respondent, that the Relevant Complaints lodged by the complainant to the WRC are out of time, the Adjudication Officer does not have jurisdiction to deal with same and the Relevant Complaints should be dismissed.

LEGAL SUBMISSIONS

1.       Section 85A(i) of the Employment Equality Acts deals with the burden of proof and states that: -

‘Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove to the contrary.’

2.       This has the effect of shifting the burden of proof to the respondent but only once the complainant has proved a prima facie case that the difference in treatment alleged is due to discrimination on one of the discriminatory grounds. In Southern Health Board v. Mitchell Labour Court AEE/99/8 the Labour Court explained that the onus on the complainant in seeking to establish a prima facie case is:

‘The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise the presumption of unlawful discrimination.’

3.              In Minaguchi v. Wineport Lakeshore Restaurant DEC-E/2002/20 the primary facts were defined by the Equality Officer as follows:

‘It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

§    That s/he is covered by the relevant discriminatory ground(s).

§    That s/he has been subjected to specific treatments; and

§    That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.’

4.              In Southern Health Board v. Mitchell, the Labour Court went on to say that: - ‘It is only if those primary facts are regarded…as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment.’

The complainant was vague and uncertain about the basis for her complaints.

It is clear that while she obviously nurtures some sense of general grievance about her position, she has not quite worked out a connection between that grievance and the Employment equality Acts.

She began her submission to the hearing with an account of a period of maternity leave in 2014 and her return to work in that year and then referred to the regularisation of posts from which she may have benefitted that same year. She sought to be included in that process in 2016.

On the basis of the fact that this did not happen she alleges that there is a continuing discrimination.

However, she made her complaint on June 9th, 2022, six to eight years after these events.  In the meantime, and critically for her complaint, she entered into the agreement made following the discussions in 2016 and 2017 which resulted in the ‘red-circled’ agreement, and which are referred to at length in the respondent’s submission.

Her attempts to resile from this agreement were especially disingenuous.

On June 23rd, 2017, her union official wrote to the respondent confirming the complainant’s consent to the agreement and the complainant rather desperately sought to imply that, as she had not given her direct consent to the respondent and signed the letter personally, she was not bound by it.

However, as she confirmed in response to a direct question from the Adjudicator, she had authorised the union official to write the letter in question confirming her consent to the agreement, so this argument was exposed as being without any merit, and the basis of her claim disappeared with it.

She is therefore bound by that agreement, and I find that she voluntarily entered into that agreement as the basis for her grading from that point on.

It follows also that her assertion that there was some continuing discrimination emanating from the events in 2014 or 2016 is without any merit whatsoever.

Having accepted this as her de facto grading position it renders both the ‘continuity of discrimination’ line of argument and her further attempt to mount an equal pay complaint using comparators who are in a higher grade as clearly baseless. Her correct grading position was established by that agreement and with her agreement.

In respect of the alleged discriminatory provision in her contract she offered no evidence nor any argument in support of this.

The complainant has not made out a prima facie case under any of the complaints and they are therefore not well founded.

As she has not established any date of an alleged breach of the Act the time limits issue becomes irrelevant.

Her complaints are not well founded

For the reasons set out above complaints CA-00051065-001 and -002 are not well-founded.

Equality, discrimination, time limits.