Complainant

Respondent

Parties

Katarzyna  Kida

Arachas Corporate Brokers Limited

Representatives

MP Guinness BL, instructed by Eversheds Sutherland

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-00055931-001

05/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00055931-002

05/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055931-003

05/04/2023

The Complainant presented three complaints to the Workplace Relations Commission (WRC) on 5 April 2023: a complaint under the Employment Equality Acts 1998-2015; a complaint under the Protection of Employees (Fixed-Term) Work Act 2003; and a complaint under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 S.I. No. 36/2012. The Respondent submitted inter alia that the three complaints were not presented within 6 months from the date of contravention to which the complaints related as required by law, and that the Complainant did not apply for an extension of time up to a maximum of 12 months, either in advance of or during the hearing.

CA-00055931-001

Oral Evidence of the Complainant (under affirmation)

The Complainant alleged discrimination on grounds of race when Ms B, an employee of the Respondent, repeatedly referred to the Complainant’s accent during a three-week training programme in June 2021. The Complainant outlined that during the training programme she was constantly compared by Ms B to an Irish colleague ‘J’ in relation to her accent. Further, she was required to undergo training for 3 weeks, whereas J was only required to attend training for 2 weeks. The Complainant confirmed to the hearing that she did not complain at the time about these comments or the requirement to train for a further period of 1 week. In September 2022, when the Complainant learnt that she would not be offered a permanent contract of employment, she raised a grievance in relation to Ms B’s conduct during the training programme in 2021. This complaint was investigated by the Respondent under the company Grievance Procedure. The Complainant submitted that a further act of discrimination took place during this grievance investigation. As part of the grievance investigation Ms B was interviewed on 19 October 2022. The Complainant submitted that the response given by Ms B was a further act of discrimination on grounds of race.

The Complainant confirmed to the hearing that the first act of discrimination on grounds of race was June 2021 which continued for three weeks but that no issues arose thereafter. The Complainant also confirmed to the hearing that the second act of discrimination on grounds of race did not occur until 19 October 2022 when the Complainant was no longer an employee of the Respondent.

The Complainant also outlined that on 19 January 2022 the CEO sent an email stating ‘all staff’ would receive a bonus. The Complainant did not receive a bonus. The Complainant submitted that it was wrong of the CEO to promise a bonus to all staff and then renege on that promise. The Complainant outlined that there is a right to equal pay. The Complainant confirmed to the hearing that the unequal treatment regarding the payment of the bonus was not predicated on her membership of any of the nine grounds provided for under the Employment Equality Acts. 

In cross-examination, it was put to the Complainant that her first complaint of race discrimination dated back to 2021 and that she did not alert management to this complaint at the time. The Complainant accepted this to be the case but added that she did complain in September 2022 when the Respondent failed to give her a permanent contract as promised. The Complainant accepted that she was no longer an employee at the time of the second alleged act of race discrimination. It was put to the Complainant that she had no contractual right to the bonus payment, to which the Complainant responded that it was unfair for a professional person such as the CEO to state in an email that all staff would receive a bonus if the company did not intend to give it to all staff. It was put to the Complainant that she had not selected a prohibited ground as required under the Acts in relation to this alleged discriminatory act.

CA-00055931-002

The Complainant outlined that she was induced into signing a third fixed-term contract on the promise of a permanent contract. This promise was made to her by her Manager, Ms M, during a telephone conversation. The Complainant submitted that she would not have accepted the third fixed-term contract in the absence of such a promise. The Complainant described feeling “used” and “betrayed” when in September 2022 she was not offered a permanent contract. The Complainant raised a grievance which was investigated by the Respondent. The outcome of the grievance investigation was communicated to the Complainant in November 2022.

The Complainant explained that she did not present a complaint to the WRC in respect of this matter until April 2023 as she was “grieving” the loss of a permanent role and that the situation had taken a toll on her mentally and physically. The Complainant outlined that she thought the time limit of 6 months for referring a complaint to the WRC commenced from November 2022 when the outcome of the grievance investigation appeal hearing was communicated to her.

In cross-examination Counsel for the Respondent opened an email dated 26 May 2022 from Ms M to the Complainant in which Ms M stated: “[c]an’t guarantee the permanent role yet as it is dictated by operational needs and resourcing”. The Complainant accepted that the phone conversation with Ms M preceded the email of 26 May 2022. The Complainant also accepted that Ms M’s written words were clear: she could not guarantee the Complainant a permanent position.  

CA-00055931-003

The Complainant confirmed to the hearing that she was not a mobile transport worker, and that she selected the ‘Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012’ option on the WRC complaint form as it was the legislation that she thought most suited her complaint. The Complainant outlined that she always received her statutory rest entitlements but that the Respondent breached her right to disconnect when it failed to advise staff that she was on annual leave, resulting in her being contacted on her personal phone on occasion while on annual leave. The Complainant confirmed to the hearing that the last time she availed of statutory annual leave was August 2022 and that the last time she was contacted while on statutory annual leave was 16 August 2022. The Complainant confirmed to the hearing that she did not complain to her manager or to Human Resources about being contacted while on annual leave until her contract was not renewed in September 2022. The Complainant’s grievance regarding being contacted while on annual leave was investigated by the Respondent as part of the broader grievance investigation.

Outline Preliminary Objection

Counsel for the Respondent submitted that the Adjudication Officer does not have jurisdiction to hear the three complaints as they are out of time and that the Complainant has failed to proffer reasons that satisfy the test for reasonable cause to extend the time limit. Each of the complaints must be lodged within 6-months from the date of contravention to which the complaints relate. The complaints were not received within that 6-month time limit. Further, the Complainant did not make an application for an extension of time up to the maximum of 12 months. The Respondent is relying on Salesforce.com v Alli Leech (EDA 1615); Cementation Skanska v Carroll (DWT0338);  Minister for Finance v CPSU and Others [2007] 18ELR 36 and Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 with respect to enlarging time limits. Further, and without prejudice to the foregoing, the Respondent is at a loss as to the alleged breaches under the Protection of Employees (Fixed-Term) Work 2003. The Complainant is not a mobile worker and therefore she cannot maintain a complaint under the 2012 Regulations.

CA-00055931-001

Counsel for the Respondent submitted that the WRC has no jurisdiction to investigate the first alleged act of race discrimination as the complaint is out of time. If the Adjudication Officer was to extend the time limit to 12 months, the complaint would still be out of time. Counsel added that the WRC has no jurisdiction to investigate the second alleged act of race discrimination as the Complainant was not an employee on 19 October 2022 and therefore, she did not have the protection of the Employment Equality Acts on that date.  In relation to the complaint concerning the non-payment of bonus, Counsel for the Respondent submitted that the Complainant had no contractual right to a bonus and that she has not identified any discriminatory ground in relation to this complaint as required under the Acts.

CA-00055931-002

Counsel for the Respondent submitted that the Complainant had not made an application for an extension to the 6-month time limit for presenting her complaint to the WRC either prior to or at the hearing. Counsel submitted that the test for extending the 6-month time limit is whether or not the failure to present the complaint within that 6-month period was due to reasonable cause. Awaiting the outcome of a grievance hearing does not constitute reasonable cause. Further, no medical evidence was submitted by the Complainant to explain the delay in presenting the complaint within the initial 6-month period. Counsel submitted that the Complainant in any event had not pointed to any specific breach of the 2003 Act.

CA-00055931-003

Counsel for the Respondent submitted that the Complainant is not a mobile transport worker; that the complaint is out of time; that the Complainant did not make an application for an extension to the 6-month time limit; and that the Respondent was at a loss as to the precise breach of working time legislation being alleged by the Complainant.

Substantive Matters

The Respondent declined to go into evidence in relation to any of the three complaints.

CA-00055931-001  

Law

The Employment Equality Acts 1998 to 2015 (“the Acts”) promote equality in the workplace and provides protection against discrimination, harassment, and victimisation. An employer cannot discriminate against an employee in relation to several areas including conditions of employment and training. The Acts prohibit discrimination on nine grounds, one of which is race, colour, nationality or ethnic or national origin. Discrimination occurs when one person is treated less favourably than another is, has been or would be treated, on one or more of the nine grounds. The employee must demonstrate that they have been treated less favourably than a comparator.

In relation to the entitlement to equal pay on the prohibited grounds of discrimination (other than gender), s 29(1) of the Acts provides:

“It shall be a term of the contract under which C is employed that subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.”

“Remuneration” is broadly defined and includes bonus earnings.

The Complainant must show that the difference in pay is due to discrimination on one of the prohibited grounds.

Time-Limits

The Acts set out strict time limits for the referral of complaints to the WRC. The period of six months does not apply to equal pay claims. Section 77(5) of the Acts provides (emphasis added):

“(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. (Emphasis added).

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

On application by a Complainant, the WRC may extend the six-month period to no more than 12 months if the Complainant can demonstrate there is “reasonable cause” to justify the extension. In Department of Finance v IMPACT [2005] E.L.R. 6 the Labour Court stated that in considering if reasonable cause exists, it was for the applicant to show that there were reasons which both explain the delay, and which afford an excuse for it. Where an illness is alleged by an employee to have prevented the presentation of their complaint within the required six-month period, sufficient medical evidence must be provided to show that the illness prevented the employee from presenting their complaint within the six-month time limit and that they would have lodged their claim within the required period were it not for the illness or medical condition. The utilisation of the Company Grievance Procedure does not amount to reasonable cause for delaying referral of a complaint. The dicta of the Labour Court in Pfizer Pharmaceuticals Ireland v Whelan (EDA 24/2019) is worth noting:

“The Court is of the view that the Complainant cannot circumvent the time limits set out in the Acts by seeking to rely on an internal procedure that did not prevent her from bringing her complaint within the statutory time limit. In line with its decision in Business Mobile Security Ltd t/a Senaca Limited v John McEvoy EDA1621, the Court does not accept that the internal grievance process can take its course to extend the period for submitting a claim which in any event is limited by Section 77 (5)(b) to a period of twelve months from the date of the occurrence of the event giving rise to the claim.”     

Further in Brothers of Charity Services Galway v Kieran O’Toole [EDA 177] the Court held:

“The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”

The Court also noted in this case that it has previously held:

“. . . in order for acts or omissions outside the time limit to be taken into account there must have been acts or omissions of discrimination (or victimisation) within the time limit. It held that there must be some reality in the claim that acts of discrimination actually occurred within the limitation period. Otherwise a Complainant could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit.”

Findings

The Complainant alleges three acts of discrimination. The first of the discriminatory acts is alleged to have occurred during a training course in June 2021; the second discriminatory act is alleged to have occurred on 19 January 2022; and the third and final act of discrimination is alleged to have occurred on 19 October 2022. I am satisfied based on the evidence of the Complainant that there was not a continuing act of discrimination in this case, but rather three isolated alleged acts of discrimination.

Alleged Discriminatory Act I:

The first alleged act of discrimination (race ground) relates to a period of 3 weeks in June 2021. It was submitted by Counsel for the Respondent that this complaint is out of time. Under s 77(5)(a), a claim for redress in respect of discrimination may not be referred under the Acts after the end of the period of 6 months from the date of occurrence of the alleged discrimination. The Complainant did not present this complaint to the WRC until 5 April 2023. The Complainant did not expressly ‘make an application’ to extend the 6-month time limit as required under s 77(5)(b) but she did give evidence as to why she did not present her complaint within the initial 6-month statutory time limit provided for under the Acts. Notwithstanding the foregoing, I cannot inquire into a contravention occurring outside of the 12-month period provided for under s 77(5)(b) of the Acts. This alleged act of discrimination occurred more than 12 months prior to the referral of the complaint of discrimination to the WRC. Accordingly, I find that I do not have jurisdiction to inquire into this alleged discriminatory act as it is outside of the time limits provided for under s 77(5)(a) and s 77(5)(b) of the Acts.

Alleged Discriminatory Act II:

The second alleged act of discrimination relates to the non-payment of a bonus on 19 January 2022. The time limits provided for under s 77(5)(a) and s 77(5)(b) of the Acts do not apply with respect to equal pay claims. The onus is on the Complainant to discharge the burden which the Acts place on her to show that the difference in pay (i.e., the non-payment of a bonus in January 2022) was due to discrimination on one of the prohibited grounds. The Complainant has not discharged that burden. Accordingly, I find that the Complainant has not established a prima facie case of discrimination in respect of this alleged discriminatory act, and therefore this part of the complaint is not well-founded.

Alleged Discriminatory Act III:

The last act of discrimination (race ground) is alleged to have occurred on 19 October 2022. It is the Complainant’s case that this further act of discrimination took place during the grievance investigation. As part of the grievance investigation Ms B was interviewed on 19 October 2022. The Complainant submitted that the response given by Ms B, in which Ms B explained the context in which she referred to the Complainant’s accent and her defence to the allegation, constituted a further act of discrimination on grounds of race.

This alleged act of discrimination is within the 6-month time limit provided for under s 77(5)(a). Counsel for the Respondent submitted that the Adjudication Officer does not have jurisdiction to inquire into this alleged discriminatory act under the Acts as the Complainant no longer had the protection of the Acts on the date the act of discrimination is alleged to have occurred.

It is common case that the Complainant was no longer an employee of the Respondent on the date of this alleged act of discrimination. The issue for consideration here is whether the Complainant has the protection of the Acts in relation to this discriminatory act which is alleged to have occurred on 19 October 2022 when she was no longer an employee. Section 8(1) of the Acts provides:

“. . . an employer shall not discriminate against an employee in relation to — . . . b) conditions of employment, (c) training or experience for or in relation to employment . .  . ” (emphasis added).

Section 2 of the Acts defines an employee as meaning:

“. . . a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment . . . .” (emphasis added).

The Acts have been found to apply to former employees in relation to victimisation i.e., where the employee suffers adverse treatment as a reaction to the employee’s complaint of discrimination (for example, the refusal to provide an employment reference or the provision of an unjustifiable poor reference for the former employee - see Coote v Granada Hospitality, Case C-185/97 and Connerty v Caffrey Transport Ltd DEC-E2008-018).  

This part of the complaint concerns an allegation of discrimination and not an allegation of victimisation. The Acts cover only acts of discrimination which occur in relation to access to employment or which occur during the employment relationship. Accordingly, I find I do not have jurisdiction to inquire into this alleged act of discrimination under the Acts as the Complainant was not an employee on the date this act of discrimination is alleged to have crystallised.

CA-00055931-002

The Law

The Protection of Employees (Fixed-Term) Work Act 2003 (“the 2003 Act”) provides for the improvement of the quality of fixed-term work by ensuring the application of the principle of non-discrimination (i.e. fixed-term workers may not be treated less favourably than comparable permanent workers) and it establishes a framework to prevent abuse arising from the use of successive fixed-term employment contracts.

Time limits

Section 41(6) of the Workplace Relations Act 2015 (“the 2015 Act”) provides:

“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.”

Section 41(8) of the 2015 Act provides:

“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.”

Findings

This complaint relates to the Respondent not offering the Complainant a permanent contract after her fixed-term contract ended on 30 September 2022. Under s 41(6) of the 2015 Act, the Complainant had until 29 March 2023 to present a complaint to the WRC. This complaint was not presented to the WRC until 5 April 2023. Under s 41(8) of the 2015 Act, an Adjudication Officer ‘may entertain a complaint’ after the six-month period if the Adjudication Officer is satisfied that the failure to present the complaint within the initial 6-month period was due to ‘reasonable cause’. It was for the Complainant to show that there were reasons which both explained the delay, and which afforded an excuse for it. The Complainant gave evidence as to why she did not present her complaint within the 6-month time limit. I find that the reasons provided by the Complainant are not sufficient to demonstrate reasonable cause for the delay in presenting the complaint to the WRC. As noted above, where an illness is alleged by an employee to have prevented the presentation of their complaint within the required six-month period, sufficient medical evidence must be provided to show that the illness prevented the employee from presenting their complaint within the six-month time limit and that they would have lodged their complaint within the required period were it not for the illness or medical condition. No medical evidence was presented to the hearing. Further, the utilisation of the Company Grievance Procedure does not amount to reasonable cause for delaying referral of a complaint as has been confirmed by the Labour Court in several cases. Accordingly, I find that I do not have jurisdiction to inquire into this complaint as it is outside of the time limit provided for in s 41(6) of the 2015 Act.

CA-00055931-003

The Law

The Organisation of Working Time Act 1997 (“the 1997 Act”) sets out statutory rights for employees in respect of rest, maximum working time and holidays.

The 1997 Act does not explicitly refer to a ‘right to disconnect’ and there is no express provision in the 1997 Act which prohibits an employer from contacting an employee while on annual leave.

The WRC Code of Practice for Employers and Employees on the Right to Disconnect provides practical guidance for employers and employees to assist in meeting obligations under the 1997 Act and other legislation. While failure by an employer to follow the Code is not an offence in itself, the Code is admissible in evidence in proceedings before the WRC. Therefore, if an employee makes a complaint to the WRC relating to rest entitlements under the Organisation of Working Time Act 1997, the employer’s compliance or otherwise with the Code can be considered in the adjudication of that complaint. 

Time Limits

Section 41(6) of the 2015 Act provides:

“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.”

Section 41(8) of the 2015 Act provides:

“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.”

Findings

The Complainant referred this complaint under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 S.I. No. 36/2012. It is common case that the Complainant is not a mobile worker.

The complaint form is not a pleading or statutory form, and therefore a certain degree of latitude is afforded to Complainants where the wrong legislation is selected provided this does not hinder the ability of the Respondent to deal with the complaint or affect the Respondent’s right to fair procedures (see County Louth VEC v Equality Tribunal [2009] IEHC 370 and Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210).

The narrative of the complaint reads as follows:

“I was constantly called and received texts during time off / Annual leave and other off time. The employer has failed to provide information to other teams who is off on annual leave so that could stop them in contacting me when I was off work”.

This complaint form was copied to the Respondent and, while the complaint was selected under a Regulation that did not apply to the Complainant, the nature of the complaint was clearly indicated. Applying the findings of the High Court in both cases cited above, I find I have jurisdiction to treat this complaint as a complaint under the Organisation of Working Time Act 1997 (“the 1997 Act”). The decision, therefore, reflects that it is a claim seeking redress under the 1997 Act. This complaint (CA-00055931-003) has been amended to reflect the correct legislative provision.

The Complainant told the hearing that she always received her statutory rest entitlements but that the Respondent breached her right to disconnect when it failed to advise other members of staff that she was on annual leave, resulting in her being contacted on several occasions while on annual leave. The Complainant confirmed to the hearing that the last time she was contacted while on statutory annual leave was 16 August 2022. Counsel for the Respondent submitted that the complaint is out of time; that the Complainant did not make an application for an extension to the 6-month time limit; and that the Respondent was at a loss as to the precise breach being alleged by the Complainant.

The Complainant referred her claim to the WRC on 5 April 2023. By application of the time limit provided for at s 41(6) of the 2015 the cognisable period for the purpose of this claim is confined to the six-month period ending on the date on which the complaint was presented to the WRC, therefore, the cognisable period covered by the claim is the six-month period from 6 October 2022 until 5 April 2023. The alleged contravention of the 1997 Act falls outside of this cognisable period. Under s 41(8) of the 2015 Act, an Adjudication Officer ‘may entertain a complaint’ after the six-month period if the Adjudication Officer is satisfied that the failure to present the complaint within the initial 6-month period was due to reasonable cause. It was for the Complainant to show that there were reasons which both explained the delay, and which afforded an excuse for it. The Complainant gave evidence as to why she did not present her complaint within the 6-month time limit. I find that the reasons provided by the Complainant are not sufficient to demonstrate reasonable cause for the delay in presenting the complaint to the WRC within the time limits under s 41(6) of the 2015 Act. As noted above, where an illness is alleged by an employee to have prevented the presentation of their complaint within the required six-month period, sufficient medical evidence must be provided to show that the illness prevented the employee from presenting their complaint within the six-month time limit and that they would have lodged their complaint within the required period were it not for the illness or medical condition. No medical evidence was presented to the hearing. Further, the utilisation of the Company Grievance Procedure does not amount to reasonable cause for delaying referral of a complaint as has been confirmed by the Labour Court in several cases. Accordingly, I find that I do not have jurisdiction to inquire into this complaint as it is outside of the time limit provided for in s 41(6) of the 2015 Act.

CA-00055931-001

Section 79 of the Employment Equality Acts 1998 – 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under s 82 of the Acts.

Alleged Discriminatory Act I: I decide I do not have jurisdiction to inquire into this alleged discriminatory act as the alleged discriminatory act occurred outside of the time-limit for referring a complaint as provided for under s 77(5)(a) and s 77(5)(b) of the Employment Equality Act 1998-2015.

Alleged Discriminatory Act II: I decide the Complainant has not established a prima facie case of discrimination in respect of this alleged discriminatory act, and therefore this part of the complaint is not well-founded.

Alleged Discriminatory Act III: I decide I do not have jurisdiction to inquire into this alleged discriminatory act as the Complainant was not an employee on the date of the alleged act of discrimination.

CA-00055931-002

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I decide I do not have jurisdiction to inquire into this complaint as it is outside of the time limit provided for in s 41(6) of the 2015 Act.

CA-00055931-003

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I decide I do not have jurisdiction to inquire into this complaint as it is outside of the time limit provided for in s 41(6) of the 2015 Act.

Out of time. Alleged discrimination. Right to Disconnect.