Complainant

Respondent

Anonymised Parties

{A General Operative}

{A Building Company}

Representatives

Karl Shirran BL  Coughlan White & Partners

Alan Devaney Ronan Daly Jermyn

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044533-001

09/06/2021

The Complainant was employed with the Respondent from 3rd October 2016 until 14th August 2020.

The Complainant was employed as a General Operative.

The Complainant began working on a site in Naas for the company full-time, and he transitioned to another project in Clane for an affiliated company of the Respondent working on the two sites. The Directors of the Respondent are also Directors of the affiliated company. Both projects are mixed developments including houses, apartments and commercial units. The Clane project is ongoing with 30-40 apartments to be completed.

He alleges discriminatory dismissal due to his age pursuant to S6 (1) and S6 (2) (f) of the Employment Equality Acts 1998-2019. He worked well, and had good attendance. The Complainant is older than Noel Taylor the other general operative employed who is the comparator. The Complainant submits the facts support a prima facie case of age discrimination as no reason, objective justification or selection process was provided. The Complainant relies on the decision in E O’ Higgins v Labour Court & Anor [2013] when the Labour Court finding of gender discrimination was upheld by the High Court, as the applicant met the independent criteria being recommended as suitable for promotion, the gender imbalance in the review committee and lack of minutes/records of meetings reviewing individual candidates.

The Complainant had periods of sick-leave from 15-29 May 2020, and  2-28th June 2020. When the Complainant returned from sick-leave in July 2020, he was given two week’s notice of redundancy. No reason was given for dismissal. This was contrary to assurances given to him in March 2020 after the outbreak of Covid-19, that there were more projects ongoing. The Respondent is currently seeking planning permission for a new housing development of 400 houses in Clane and the Clane project is ongoing.

The Complainant believes he was selected for redundancy due to his age and ill health. No explanation was given of need to reduce staff or selection criteria. Suitable alternative employment  was not discussed. Mr. Taylor was employed for 12-18 months when the Complainant was dismissed.

The Complainant was told by the company that he was the only general operative, there was no work available and no one else that could be selected. There was no merit to the Complainant’s selection, no formal decision process, and no objective criteria on which the decision was based.

The Complainant disputes he was the only general operative. He says there are two general operatives who are younger still working who performed the same tasks. The Complainant has not been able to find alternative work due to his age and nature of the work.

 The Complainant applies for an extension of time to allow his complaint to be heard, where failure was due to reasonable cause. The Complainant relies on the Labour Court decision in Cementation Skanska v Carroll (DWT0338) and DPP v X.Y [2021] IECA 34 when the Court of Appeal granted an extension of time for an applicant convicted to rape to challenge his conviction and sentence. The facts involved delay based on the outbreak of the Covid-19 pandemic which contributed to delay in lodging an appeal.

The Complainant says the pandemic led to his being not properly able to instruct his solicitors. He does not have access to email or computer software. The Complainant suffers from Chronic Obstructive Pulmonary Disease which leaves him more susceptible to serious illness from Covid-19. The Complainant contacted his solicitors within the 6-month period after dismissal, he was prevented from submitting all relevant documents to be advised regarding his claim. He was reluctant to travel unnecessarily to post or visit the solicitor’s firm. There is no prejudice to the Respondent in the delay that has arisen.

In addition to Mr. Taylor, there was another Polish worker who carried out tasks overlapping with those of the Complainant.  The company took on another worker after the Complainant left. The company had multiple projects ongoing, although it is accepted that the site the Complainant worked on was finishing.

The Complainant seeks financial loss and compensation for discrimination.

The Respondent is a property development business which began trading in 2015. The Complainant was employed from October 2016 until he was made redundant in August 2020. The Respondent denies allegations of discrimination in selection for redundancy due to age or ill health.

The Respondent raises a preliminary objection objecting to an application to extend time pursuant to S41(8) of the Workplace Relations Commission Act 2015. The date of dismissal was 14th August 2020 and six month period ended on 14th February 2021. The complaint was lodged on 9th June 2021 which is 9 months and 26 days after the date of the alleged contravention and outside the prescribed time-limit of six months.

The Complainant’s Solicitor refers to the age of the Complainant as an “elderly gentleman” and he has “been hospitalised in the last year” as reasonable cause for the delay. The Respondent does not know how the Complainants age and hospitalisation give rise to the delay. The hospitalisation was long before the redundancy. No medical evidence has been provided of a medical condition demonstrating a causal link between the circumstances cited and the delay.

The Respondent relies on Dublin City Council v Laurence A. Skelly (DWT212) when the Complainant argued reasonable cause for delay in submitting a complaint based on the fact he was involved in an internal procedure with the Respondent and he was suffering from poor mental health PTSD which made it difficult for him to deal with the issues. This was rejected as Mr. Skelly did not submit that his condition preventing him from making the complaint in time. There was protracted correspondence with his employer over eleven months, reliance on the internal process was also rejected. The Respondent also relies on Hydraulic Hose Service Ltd t/a Pirtek v Christian Balasa and Murphy v Citizens Information Call Centre Ltd (UD 59/2005).

The Complainant’s solicitor wrote to the Respondent on 6th November 2020 threatening a complaint to the WRC saying they had taken instructions, therefore it is not plausible to say it was not possible to take instructions and relies on all of the Complainant’s solicitors correspondence during this period. The Respondent submits relying on Covid-19 is not a significant factor as email and post services were working during this period. Efforts were made to resolve the issue which was unsuccessful but is not a basis for application for extension of time. The Respondent submits no explanation for delay to afford an excuse has been provided and the Complainant was represented by his solicitor during this period.

The Respondent says the worker referred to is an agency worker carrying out cleaning and is not a relevant comparator. The other general operative is employed by an affiliated company and is not employed by the Respondent. The Complainant’s health was not an issue. The site in Naas was finished. There is no prima facie case showing discrimination on the age or disability ground.

I have heard and considered the submissions and evidence of the parties.

Given the sensitive nature of the medical information provided, I am anonymising the identity of the Parties.

The Complainant alleges discrimination by his employer on the grounds of age and disability contrary to S 6 (2 )(f) and (g) of the Employment Equality Acts 1998-2019.

The burden of proof is set out in Section 85A(1) of the 1998-2019 Acts which provides 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 the contrary.”

Only where the initial burden of proof is discharged by the Complainant and the facts are of sufficient significance to raise a presumption of discrimination that the burden of proving there was not an infringement of the principle of equal treatment passes to the Respondent.

The Respondent raises a preliminary objection regarding the delay in making the complaint. The Complainant was dismissed on 14th August 2020, and his complaint was received by the Workplace Relations Commission on 9th June 2021.

S 77 (5) Employment Equality Act 1998

(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 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….

S41 of the Workplace Relations Act 2015 provides;

(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 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 established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts 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 with 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.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent has suffered prejudice by the delay and should also consider if the Claimant has a good arguable case”.

The Complainant’s solicitors sent a letter of claim on 6th November 2020 claiming the dismissal by the Respondent was unfair, however, his complaint was received by the Workplace Relations Commission on 9th June 2021 almost four months after the expiry of the statutory time-limit of six months. The solicitors say they had difficulty obtaining clear instructions within the time-limit as the Complainant did not have access to email or a computer. The pandemic took place and there were some obstacles to obtaining instructions in person from the Complainant given his disability Chronic Obstructive Pulmonary Disease, being confined to home and particular vulnerability to Covid-19. In addition, the solicitor’s office was closed and there were delays obtaining hard copies and briefing Counsel.

Taking into account the Complainant’s background of ill health and difficulty providing clear instructions to the solicitors within the statutory time-limit and taking into account the decision in DPP v X.Y [2021] IECA 34 by the Court of Appeal, I accept the pandemic then caused some delays in progressing the claim in the usual way given the nature of restrictions and particular health problems of the Complainant at the time. Taking into account the Complainant’s claim, there is no prejudice to the Respondent in the complaint proceeding. I find there is reasonable cause to extend time to allow the complaint to proceed.

The Complainant was absent on sick-leave in May and June 2020, returning to the site on 2nd July 2020. He was telephoned about his redundancy on 27th July 2020 and dismissed due to redundancy on 14th August 2020. The Complainant gave evidence at the hearing of some bouts of ill health due to his condition. He said a Polish worker was taken on full-time to carry out the work he did, following his sick-leave. He has been out of work since August 2020 but recently got some work. There was no discussion of alternative employment when he was being made redundant, but he had previously been told there would be work in Clane when the Naas project finished.

The Respondent Director says the worker referred to is an agency worker carrying out cleaning and is not a relevant comparator. The Respondent Director gave evidence that the other general operative is employed by an affiliated company and is not employed by the Respondent. He said they had work on site for nine or ten months in 2020. The Complainant was not required as they had five final houses and thirty or forty to be constructed. The Complainant’s health was not an issue or age as the houses are timber-framed. The site in Naas was finished. There were ongoing projects except for a few months in 2022.

The Respondent Director agreed the Directors of both companies are the same individuals and said the shareholders differ. Financial information was received showing substantial company income for 2020 and 2021 for the affiliated company.

Having considered the evidence and submissions of the parties, I find a prima facie case of discrimination on the age and disability ground has been made out given the termination of employment of the Complainant on 27th July 2020 which closely followed his return to work on 2nd July 2020 from a bout of sick-leave due to his disability. The Respondent did not enter into a consultation process with the Complainant regarding his redundancy nor consider mitigation or suitable alternative positions notwithstanding the site continuing in operation in Clane. It is accepted that the Complainant worked for the Respondent and its affiliated company and he had longer service than the general operative who remains working.

A prima facie case of discrimination has been shown and the probative burden has shifted to the Respondent to show that the Complainant has not been discriminated against on the grounds of his age and disability. The response of the Respondent is insufficient in my view to discharge the burden of proof.

The dismissal had a significant impact on the Complainant given his age and condition which has made it more difficult to obtain other work.  I also take into account the fact the company was not operating sites for a few months in 2022. In the circumstances, I award €35,000 compensation for discrimination due to age and disability and direct payment of same by the Respondent.  

I award €35,000 compensation for discrimination and direct payment of same by the Respondent.