EDA2418

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00030360 (CA-00041304-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83 (1), Employment Equality Acts, 1998 to 2015. A Labour Court hearing took place on 26 March 2024. The following is the Decision of the Court:

DETERMINATION:

This is an appeal by Ms Siobhan Mc Nally (the Complainant) against the Decision of an Adjudication Officer under the Employment Equality Acts 1998 to 2015 in respect of her complaint against her employer Rotunda Hospital (the Respondent). The claim was referred to the Workplace Relations Commission on the 30th November 2020 by the Complainant.  Labour Court Decisions EDA 2148 determined that her employment terminated on 20th May 2019 and this decision was not appealed to the High Court. The Adjudication Officer held that the complaint was out of time.

Background

The Complainant was employed by the Respondent from March 2003 until 20th May 2019.  A preliminary issue relating to time limits arises in this case. There are 26 related cases where the same preliminary issue arises. The Court held a case management conference on the 7th November 2023 in respect of all 27 cases. It was agreed at that case management conference, that the Court would consider the preliminary issue and issue a decision in respect of same. The Respondent requested that all 27 cases be heard at the same time. The Complainant indicated that she was not agreeable to all 27 being scheduled at the same time. The Court decided to schedule four cases and consider the preliminary issue in respect of time limits. The hearing took place on 26th March 2024, and at the commencement of the hearing the Court took the opportunity to remind parties that that as previously agreed the only issue being considered was the time limits issue.

Preliminary Issue – Time Limit

 Summary of the Complainants position

 The Complainant submitted that she wanted to address the issue of consent in that she had not consented to being retired on grounds of ill health. She stated that she felt that issue should be addressed as the first preliminary issue.

 The Complainant did not dispute that she had agreed at the case management conference that the hearing would be in respect of the preliminary issue relating to time limits only. The Complainant also accepted that Labour Court decision EDA 2148 determined that her employment terminated on 20th May 2019, and that she had not appealed that decision.

The Complainant submitted that she is relying on section 32 of the equal status Act 2000-2018 which allows for the operative date in respect of the time limits set out in the act to be the date the Complainant becomes aware of a misrepresentation. On the day following the hearing the Complainant emailed the Court to state that she had inadvertently referenced the Equal status Act and that she had meant to say that the Equality Act 2004 amends section 77 of the Principal Act.

 The Complainant submitted that the misrepresentations that she was relying on were made by the Respondent in August 2019, September 2019 and the 7 October 2020 at WRC hearings at which the Complainant submitted the Respondent had deviated its position as to whether she or not she had a disability. The Complainant submitted that therefore her complaint was in time.

 Summary of Respondent’s submission

 The Respondent submitted that there has not been any misrepresentation by the Respondent. Therefore, the Complainant cannot benefit from section 77 (6) and her complaints are out of time.

The Complainant is seeking to rely on legal arguments put forward by the Respondent at WRC hearings in respect of earlier complaints lodged by the Complainant. The legal arguments were in response to specific arguments made by the Complainant and were not in respect of her retirement. However, the Respondent did not at any time argue that the Complainant did not have a disability.  The Complainant has failed to establish that any misrepresentation occurred on any of the dates identified or at all and therefore her complaints are out of time

The applicable law

The forum for seeking redress as set out in the Act at s77 (5) and (6) state as follows.

(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] 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.

(6) Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection (5)(a) shall be construed as if the references to the date of occurrence of the discrimination or victimisation were references to the date on which the misrepresentation came to the complainant's notice.

Discussion

In order to avail of section 77 of (6) of the Act the Complainant has to establish that a misrepresentation occurred, relevant to these proceedings. The Complainant in the case to hand has made references to arguments raised in other cases without elaborating on how they constituted misrepresentation, as opposed to  a defence to a claim being taken by the Complainant. The Court having taken the relevant submissions into consideration determines that misrepresentation did not occur, and the Complainant cannot benefit from section 77 (6) of the Act.

Determination

For all the reasons set out above, the Court finds that the complaint under the Act is outside the statutory time limits, and therefore must fail.  In these circumstances, the Court cannot proceed to hear the substantive matter.

The Decision of the Adjudication Officer is upheld

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CDK	______________________
11 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Coleen Dunne Kennedy, Court Secretary.