EDA2346

ADE/23/68

DECISION No. EDA2346

SECTION 44, WORKPLACE RELATIONS ACT 2015

SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015

PARTIES:

Trinity Care Group, Saint Peters Nursing Home

AND

Mr Marcel Houssou

(REPRESENTED BY Adare HRM)

DIVISION

 Chairman: Mr Haugh

 Employer Member:Ms Doyle

 Worker Member: Ms Tanham

SUBJECT

Appeal of Adjudication Officer Decision No's: ADJ-00042040 (CA-00052787-001)

BACKGROUND

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 19 May 2023. A Labour Court hearing took place on 21 November 2023.  The following is the Court's Decision:

DECISION

Background to the Appeal
This is an appeal by Mr Marcel Houssou ('the Complainant') from a decision of an Adjudication Officer (ADJ-00042040/CA-00052787-001, dated 19 April 2023) under the Employment Equality Act 1998 ('the Act'). Notice of Appeal was received in the Court on 19 May 2023. The Court heard the appeal in Dublin on 21 November 2023.
The Complainant's final day of employment with Trinity Care Group, St Peter's Nursing Home ('the Respondent') was 24 February 2021. The Complainant referred his initiating complaint under the Act to the Workplace Relations Commission on 13 September 2022. The complaint was deemed out of time by the Adjudication Officer, having been submitted some eighteen months after the Complainant's employment with the Respondent had ended.

The Law

Section 77(5) of the Act provides:

(5)(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.
(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.

Subsection (12) of the same section further provides:

(12)(a) Not later than 42 days from the date of a decision of the Director General of the Workplace Relations Commission on an application by a complainant for an extension of time under subsection (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the Director General of the Workplace Relations Commission specifying the grounds of the appeal.
(b) On the appeal the Labour Court may affirm, quash or vary the decision.

Application of the Law

The Complainant herein alleges inter alia that he was discriminatorily dismissed from his employment on grounds of race. However, he waited some eighteen months after the date of his dismissal to refer a complaint under the Act to the Director General of the Workplace Relations Commission.
The maximum period within which a complaint can be submitted under the Act is twelve months from the date of the last act of alleged discrimination. That twelve-month period can only be availed of by a complainant under the Act where he or she has demonstrated reasonable cause that prevented them submitting a complaint within six months of the alleged act of discrimination the subject of their complaint.
As the Complainant's complaint was not received within twelve months of the date of the termination of his employment, neither the Director General of the Workplace Relations nor this Court on appeal - having regard to section 77 of the Act - has jurisdiction to consider the substance of the complaint. The decision of the Adjudication Officer is, therefore, upheld.
The Court so decides.

Signed on behalf of the Labour Court

NOTE

Enquiries concerning this Decision should be in writing and addressed to Aidan Ralph, Court Secretary.