Complainant

Respondent

Parties

Bahman  Honari

Healthcare Pricing Office, HSE

Representatives

Not represented

Ms Joan Troy, National Employee Relations Manager

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-00055238-001

23/02/2023

Jurisdiction on Complaint Timeframe

The complainant submitted a complaint which was received in the Workplace Relations Commission (WRC) on 23rd February 2023. In summary, his complaint is that he was discriminated against on age and race grounds during an interview process in July 2022. On the complaint form he has also ticked the box that he was unlawfully discriminated against in getting a job. He states on the form the most recent date of discrimination as 23rd August 2022. The complainant received correspondence from the WRC to ensure the complaint was brought within the statutory six-month time limit.

The complainant responded by letter of 20th March 2023 with an explanation of his complaint and the times involved. At the hearing, the complainant relied on this letter to explain why he considered the complaint to be within time.

Conduct of Hearing

The complainant said he had not received a copy of the respondent’s submission.

The complainant then made an application that the remote hearing should be conducted in person and gave examples as to why this was preferred over a remote hearing. His view was that documents were easily shared in person and the advanced features of sharing documents online were not used.

I adjourned the hearing for a short period to consider this application. On the resumption of the hearing, I decided that the hearing should proceed as a remote hearing. I explained the reasoning that neither party was prejudiced as submissions were to be made in advance and the purpose of the hearing was for parties to give direct evidence. An objection to a remote hearing will only be granted where it can be demonstrated that it is not in the interests of justice and/or breaches fair procedures.

Preliminary Jurisdiction Issue

As a preliminary issue was raised on the six-month time limit and whether I had jurisdiction to hear the complaint, I invited the parties to make submissions on this issue.

I confirmed that if I were satisfied of jurisdiction, the case would be reconvened to allow the parties give direct evidence on the substantive issues.

If it was clear that I had no jurisdiction, then it was unnecessary to hear the substantive issues and I would issue a decision.

It is only in limited circumstances that a decision will be made solely on the preliminary issue to save time and costs to the parties. On appeal to the Labour Court, if a decision is overturned on jurisdiction, the Labour Court can refer the substantive issues back to be adjudicated on at first instance under S 84(4) of the Act.

I adjourned the hearing to consider jurisdiction as explained above. Both parties made further submissions on the preliminary issue.

The complainant set out in his submission that the most recent date of discrimination was 23rd August 2022 as per the original complaint form. He stated in the submission that ‘it is obvious that the last date that the recruiter organisation committed discrimination against the complainant in “getting a job” was on the 23rd of August 2022 when they responded to the complainant’s formal appeal.

He further submitted that the interview outcome was not final until he had exhausted the appeal process which concluded on 23rd August 2022. It was on this date that ‘The incidence of discrimination was, in fact, the outcome of the Formal Appeal on the 23rd of August 2022, that was retrospectively evidenced by the way that the interview was conducted and reported.’

He referenced Cementation Skanska v. Carroll DWT0338 which set out the conditions on extension of time based on reasonable cause which he claimed were also applicable to his case.

The respondent’s position is that the adjudication services do not have jurisdiction as the complaint falls outside the 6-month timeframe. They outlined the chronology of events and stated that the complainant is 6 weeks outside of the statutory timeframe. The submission states the interview process was conducted on 5th July 2022 and this was the date of the alleged discrimination. They claim that there is no evidence of discrimination in the HSE appeals process and therefore the date of the interview should stand as the start of the 6-month referral period. The complainant had the ability and time to submit informal and formal appeals on the interview process and therefore he could show no reasonable cause as to why he did not submit his complaint within the statutory timeframe.

Specifically, Section 77(5) of the Employment Equality Acts makes provision for the relevant time limits for referral of complaints by a person who intends to seek redress under the Acts and provides as follows:

“(a) Subject to subsection (6), 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 or, as the case may require, the most recent occurrence of the act of discrimination or victimisation to which the case relates.

(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 substitutes a reference to such period not exceeding 12 months as is specified in the direction”.

(6A) For the purposes of this section-

(a)    Discrimination or victimisation occurs-

(1)    If the act constituting it extends over a period, at the end of the period,

(2)    If it arises by virtue of a term in a contract, throughout the duration of the contract, and

(3)    If it arises by virtue of a provision which operates over a period, throughout the period,

In addition, Section 41 of the Workplace Relations Act provides as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The effect of these provisions is that the complainant can only seek redress in respect of occurrences during the six-month period prior to the date on which the complaints were received by the Director General. This period can be extended to twelve months in accordance with the provisions of Section 77(5)(b) and 41 (8) of the Acts respectively, in circumstances where the complainant can demonstrate that there was “reasonable cause” which prevented him from referring the complaint within the prescribed time limits.

In this case, the complainant has not made an application for the extension of the period for a further 6 months under ‘reasonable cause’ and is relying on the last date of a discriminatory act as being 23rd August 2022.

As the time-limit includes the date of the occurrence (or the last occurrence) giving rise to the complaint, the 6 months is counted as including that date.

The cognisable period for the purposes of the Act is 24th August 2022 to 23rd February 2023 (the date of the receipt of the complaint form).

Notwithstanding the above, I have considered the letter of 23rd August 2022 which is the appeal outcome. There was no allegation of discrimination made by the complainant during this process other than a reference as follows “There must also be a gender mix to comply with legislation on Equality.” The response by the Appeals Team is ‘that the board comprised of three members, two females and one male; this is a gender balanced board.’

There is no apparent evidence of a continuing act of discrimination which would bring the complaint within the cognisable period of 24th August 2022 to 23rd February 2023. In HSE v. Forde EDA 2234 (22nd December 2022), the Labour Court held that even if there had been an act of discrimination in 2016, subsequent correspondence between the parties was not discriminatory and there was no continuum of discrimination such as to bring the claim within the statutory 6-month time limit. Similarly, for the complainant in this case, there is no evidence of a discriminatory act within the cognisable period.

I understand that the complainant acted in good faith and sought to appeal matters through the appropriate procedures in the first instance. It is common case though that these actions do not stop the clock on the prescribed period to refer a complaint. The equality officer decision of Gorry v. Aviance Ltd DEC E2008-035, summarises the jurisdiction issues quite well in paragraph 5.4 as below:

This complaint was referred to the Tribunal outside of the six-month time limit provided at section 77(5)(a) of the Acts and is not therefore validly before the Tribunal unless an extension of that time limit is granted under section 77(5)(b) of those Acts. Counsel for the complainant argued that it would be unjust and an error of law if the complainant’s claim was not allowed to proceed. The opposite of this argument is, in my view, equally valid. It would be unjust to the respondent and a similar error of law if the complaint was allowed to proceed where the mandatory time limits and procedures thereto were ignored or not complied with. The respondent is entitled to assume that any exposure it has to a claim under the employment equality legislation is reduced once six-month period after the most recent alleged incident of unlawful treatment has elapsed and that any such claim will not be actionable after a period of twelve months has elapsed. Whilst “Tribunals exercising quasi-judicial functions are frequently allowed to act informally …. they may not act in such a way as to imperil a fair hearing or a fair result”. Consequently, I do not consider Counsel’s argument to be of any relevance.

For completeness, the complainant has relied onCementation Skanska v. Carroll DWT0338 and I should therefore comment on this. That case related to the test that is applied for “reasonable cause” and a possible extension of a further six months. The complainant has not made an application for an extension under reasonable cause and has relied instead on the alleged discriminatory acts being within the cognisable period.

For the reasons outlined above, I find that the complaint is out of time, and I do not have jurisdiction.

CA-00055238-001- I find that the complaint is out of time, and I do not have jurisdiction.

Timeframe, Jurisdiction