ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044287
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | An Employer |
Complaint(s):
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-00054991-001 | 18/05/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014 | CA-00054991-004 | 16/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011 | CA-00055757-001 | 28/03/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00054991-005 | 10/02/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00058842-001 | 15/09/2023 |
Complaint seeking adjudication by the Workplace relations Commission under S8 Unfair Dismissal Act 1977 – 2015 | CA- 00058829- 001 | 14/09/2023 |
Date of Adjudication Hearing: 11/09/2023
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Complainant’s Case:
The Complainant took the oath and gave her evidence as follows: The Complainant relies on her submissions and supporting documentation. A summary of her evidence is set out below: In relation to the Complainant’s Protected Disclosure claim the Complainant stated that she knew she was supposed to file out a form. She filed out the form and she identified all of the issues in it. When she got it back it was missing some of the information. She made her protected disclosure on the grounds of coercion. It revolved around sending a valentine’s card to CM with a CD of love Songs. She did write on it “you ride”. There was a two -week gap from sending the card to when she was back in his workplace. She was looking forward to seeing CM. She wasn’t at T7 for a week and then she was off for a few days. When she returned, she was in T10. He was not there. He was moved to a different team. The Complainant stated that he had been moved from T10 because of the card. She sent an email to RD Director, headed “for your eyes only”. That email is her disclosure, and it is on the Criminal Offences grounds. The Respondent concedes that this letter could be deemed protected disclosure but on different grounds (failure to comply with legal obligations). She did receive a dignity at work policy. RB requested that she follow the policy to file her complaint but she stated: “ I have decided that I will just try to forget about my time at the port”. The policy states that any issues that are raised will be dealt with professionally and appropriately. The Complainant states that the Respondent doesn’t follow its own policies, so it makes the policy pointless. The Respondent stated that the policies in relation to dignity at work, protected disclosure policy and the grievance procedure were given to her. The Complainant accepted that. She denied that she was given induction training and dignity at work training. There was also a presentation on equality, but the Complainant stated that she did not receive that. June /July 2022 the following incident occurred. She was working with another colleague MT and she started shouting the words “Mr. Baker” in a strong English accent. That was discriminatory against her. The Respondent stated that the lady in question was calling out to a friend who was on one of the ships. The Complainant states that that is just lies. They were nowhere near the ships. They were waiting for the cars to come up off the ships. There was a van with the words “Mr. Baker” on it. She kept saying the words “Mr. Baker” in a cockney accent. It was all designed to be Racist about her. In the days following the Queen’s death, B said to her, “we should get a day off too, she was our queen too”. That was racist against her. SOS heard this. He did nothing about it. On another occasion a co- worker GA stated that each department of the State was a cell of the IRA and each department had a member of the IRA in it. That was his opinion on the matter. That was discriminatory against the Complainant because she is perceived to be English. She is actually Irish. She looked at her HEO, DG for help/ intervention, but he did nothing. He was listening to it, but he did nothing. The Complainant admitted that she didn’t ask him to make GA stop. She just gave him a look, but he just stared at her. On another occasion ER made a comment about the Irish women’s soccer team got into trouble about singing a rebel Songs. She said, “it’s just a rebel Song”. The Complainant said “people seem to get upset when Rangers do it”. That was discriminatory against her. MT wrote a comment on her Irish paperwork. It was something in Irish. She also stood by her desk one day and just said the word “famine” and walked away. That was discriminatory against her. The Complainant accepts that she made a deliberate decision not to invoke the Dignity at work policy or the grievance procedure or make any type of formal complaint because she wanted to keep her job. It was suggested to the Complainant that in those circumstances it was unreasonable to seek compensation from the Respondent when she never gave them the opportunity to deal with any of the issues he had. The detriment she suffered was harassment. Everyone was talking about it. Things that were in her statement were said back to her. There was a lady who was working in Rosslare, the Complainant doesn’t know her name, she was talking to the Complainant. It was soon after the 4th October. She referred to the mafia. She didn’t record this in writing. It is not in her submissions. The Complainant does state that it is in an email to the CSSO. The Complainant felt that it had been taken straight from her statement. She did refer to the “work mafia” in the last paragraph of her statement. The very people who were harassing her were giving training on dignity at work. She was not invited to do the training. She felt she wasn’t invited because if she had received the training, she would have known what to do about what was happening to her. She did concede under cross examination that she was given the dignity at work policy, did read it and did understand it. An email from MB entitled “ Thanks” was sent to everyone in the Department. There are nine pages of names and email addresses. Basically, it was all of the people in the Department. She felt it was sent to her to highlight all the changes that had been made, e.g. promotions. It was provoking her. The Respondent put it to the Complainant that this email was just an email thanking everyone for their work over the year and it was nothing more than that. She said that the word “Thanks” was used because she said that at the end of her email. All of the names, if you hover over their names let you know what department they worker in now and lots of them were promoted. There were no proper procedures followed when she came back to work. CC wrote to the Complainant and asked her to call into him when she came in the next day. He stated that he was sorry to hear what she had to say about the issues she was having. He gave her some assurances that the situation in relation to her workload would be resolved. He offered her a change for place to work and/ or to work a different shift pattern. She did change her working hours. She moved onto the 6-3 shift patterns. She was also moved onto a different team. She accepted that but she said nothing else improved. Her workload was still enormous. She was actually doing more work than before. The Complainant looked for mobility to move to a different department. She was moved to the IHXXX. She worked there for four months. The Complainant stated that the harassment followed her into that department. She hasn’t filed a claim about what was going on in that department…yet. She was overworked and stressed. She emailed people about it and she was told that it would be dealt with but it never was. She moved back to Rosslare and the only time she was at home was to walk the dogs and she was straight back to work. She didn’t see any of her friends for months. The Respondent did tell her that they were understaffed. Nobody came to help. She was told that in the coming weeks she would be part of a team and the responsibilities would be shared out amongst the team and it wasn’t just her responsibility. She only had two days of sick leave before she took the month off. She was suffering from Migraines. Around that time, she was diagnosed with an anxiety disorder. In relation to how her illness was categorised on the Respondent’s system She did see her EO tick the “stress” box but later that was changed to “undisclosed”. That had a knock - on effect in relation to her increments. The Complainant states she was penalised in relation to her increments. She was told she had not met the criteria. On the day she came back she had a back to work chat with her EO. It was a very informal chat. The very next day she was insulted by her EO who said something about a “blowjob”. She emailed the people support manager in HR on the 18.06. 2022. The email was titled “ Triggers”. Therein she set out issues in relation to her sick certificate, her concerns about visiting the habour and a request to unfreeze her mobility request. DB sent the Complainant a letter on 13.06.2022 in relation to her claim for occupational health setting out that a number of questions were asked in the form. The Complainant did not answer those questions. The Complainant said she didn’t answer them because she had been told she wasn’t entitled to the payment. She called the department and was told that she had been paid while she was on sick leave. In the letter from DB she was also asked to supply medical information. She called her doctor and asked her to supply the medical information to DB. She sent that on to DB on the 17.06.2022. She did not see what was in it as the letter was sealed. 17.08.2022 AMC sent her an email stating “Sick leave of more than 56 days or 25 instances in the previous rolling four years period may result in ineligibility. Your current 24 month total is 32 days with 3 incidences. Further medical evidence may need to be provided in support of your application” 19.09.2022 KR to the Complainant “thank you for your query. You may apply for discounting of leave at any time. Further to the correspondence below I wish to outline the situation to you in more detail.” The email goes on to outline the situation in more detail informing the Complainant that her sick days taken are in excess of the 56 days limit over four years or 14 days in the past year. “If you provide me with further medical evidence …. I will be then able to assess you, with a view to possible discounting”. 17 .09.2022 the complainant emailed the Respondent about her increment and about her sick leave. KR wrote to the Complainant on 19.09.2022 2.43pm setting out that she had 32 days sick leave with 3 incidences all of which occurred in the last year and that that was in excess of the 56 days limit over four years or 14 days in the past year. He asked for medical evidence from her doctor or consultant so that her leave could be recategorized. The reason for her absence was “undisclosed” therefore it could not be discounted as it didn’t meet the criteria. The increment was only about €5.00 p/w. It wasn’t much. The Complainant accepted that she had in excess of 14 days sick leave in the previous 12 months. She did not receive the increment in Sept 2022. For the time she was out for one month she submitted one sick certificate only.
|
Summary of Respondent’s Case:
Preliminary Application: 1. The hearing should be held in camera. The Complainant is going to set out very personal details some of which is of a sexual nature. Also, there are allegations of harassment against parties who have not yet been named. There is a reference to a 3rd part who is not been called to give evidence and therefore he will not be able to defend the allegations if she proceeds to make them. There are also a number of people who are not available. One of whom is deceased. It would be unfair to them. 2. The IR act, does not applied. She was a civil servant. The definition of worker under the IR act does not include someone who is employed under the state. She was employed by a State Department. 3. The Unfair Dismissal Act claim was made after the first day of the hearing of this matter Employment ended with the Respondent on 02.03 2023. The file was lodged on the 14.09. 2023 and therefore is out of time. 4. The compliant CA 58842 -001 is out of time, Civil Status and Age discriminations. They were filed outside of the six months. 5. CA 54991-001 The Disability was not disclosed. The Complainant states that she went to her doctor as she was suffering from Stress. However, she didn’t see the certificate that was sent to her employer as the enveloped was sealed. When she came back to work she states that she spoke to her EO. She said she saw him click the word “Stress” from the drop down box. That is not correct. The status of his illness remained “undisclosed”. That is why when she went back in to look at it, it said “ undisclosed” She states that didn’t file the claim within the six months because she wanted to keep her job and to keep her head down and get on with it. The Respondent relies on their submissions and supporting documentation together with the evidence of their witnesses that is set out below: SOS took the Oath and gave his evidence as follows: He was the HEO at the material time and was the Complainant’s superior. All the policies are known to SOS but they are not policies that he would have ever used. When someone joins the Department they are given induction training but a lot of the learning is done on the job. The Complainant worked at XXX port up to 12.07.2021. From 12.07.201 to the 01.04 2022 she was working in Rosslare. From the 01.04 2022 she was in a different department as a Clerical Officer portal inspector. Up until the 1st April they worked in two different section but after the 1st April they worked on the same team together. It has been suggested by the Complainant that in the days following the 25th April 2022 he performed “fellatio” on the his reading glasses in front of her. That is completely denied. SOS does play with his glasses when they are not on his face, but he would never pretend to perform sexual act on them. That is totally inappropriate. She made an allegation about the Queen and getting days off. There was lots of talk about the Queen at that time, but nobody said anything out of turn. She made an allegation about comments made about the Irish Ladies football team. SOS does recall the story as it was in the papers and on the news. He can’t recall what the Complainant spoke about in her evidence. He does not recall the Complainant been treated any differently because she is of English origin. The Complainant alleges that she was given no support and had to do the work of several people. That is not correct. There were individuals sent down to Rosslare to assist. The Complainant stated that when she came back after sick leave there was nobody there to assist her. The Respondent stated that B was sent there and was there doing the work. The Complainant alleges that no procedures were followed when she came back to work. That is denied. SOS had a meeting with her. The Return-to-Work protocol form was filled out and submitted. The Complainant signed off on it. CC took the oath and gave his evidence as follows: He commenced working in Rosslare in February2022. There were three people working there in the Port and there were three teams in a different building. He was informed at all of the staff were to be amalgamated. It then became 6 days on and 3 days off. Prior to that the Complainant could have been called on to work any day of the week. She was given three options: 1. Move to OK..S team 2. Move D.. 3. Move to D..S
The Complainant alleges in her evidence that the spread sheet was changed but that is not correct. She also complained that he made a comment about a stapler being “shagged” and that he was referring to her when he said that. That is also not correct. He did apologise to her about it in case there was any confusion. She did not invoke any of the procedures with CC. She made a complaint about someone from a shipping company. The Complainant gave CC her penknife back because she said she was fearful what she would do if “the incident happened again”. CC asked her for details, but she wouldn’t give him the information. She wouldn’t give him any names. He couldn’t deal with the matter because she wouldn’t give him any details. A few days later he told the Complainant and he contacted DSG and informed them that there was not to be any contact from their staff and his. On 17.03.2022 she alleged that there was an incident with an Irish rail worker. She alleged it wasn’t investigated. That is denied. Again, she wouldn’t give any information so he couldn’t detail with the complaint. 17.03 2022 the Complainant complained about having too much work. CC was concerned. He set out in the email that when she moved to the BCP there would be a bigger team for support and to help with the workload. That was a significant team. CH took the oath and gave her evidence as follows: The Complainant came to her with a complaint. She was encouraged to contact the employee assistance support. She explained the process on how to make a complaint to her and discussed the steps in the process. She denied that she said management said they would deny everything as was alleged by the Complainant. 08.10.2022 the Complainant sent an email saying – “Good to speak to you the other day. I have decided that I will just try to forget my time at the port”. She did not invoke the policy and complain. That was the end of the matter. The Complainant liaised with CH in relation to contact from DB. In June 2022 she emailed CH about mobility and in relation to the department of social protection. She directed her towards the people who deal with mobility. She also said that she should contact the Department of Social Protection with her issue. She asked if she would be eligible for mobility. This wasn’t within her remit, so she was just given the names of the people in HR who deal with that. She ultimately was eligible for mobility and was transferred to the department of xxxxx. The department of social welfare get involved in relation to her submissions of sick certificates. The department pays some of the sick leave. What they do is outside of the control or remit of the Respondent. On the 28th Nov 2022 she send an email to CH stating that she wanted to invoke the grievance procedure. CH sent it out to her and explained the steps. She did file a grievance. She wasn’t in the same department at the time. She was in the XXX section. The Respondent replied to her on December 2022 stating “ In the first instance I wish to advise you that the grievance procedure is a process that seeks to deal with certain complaints of individual members of staff and seeks to resolve matters in the workplace. However, I understand your employment with the Department of XXX had terminated before you made this complaint. Consequently as you are no longer a member of staff , your concerns cannot be considered under the remit of that procedure as a such cannot be accepted by me” The Complainant alleges that her harassers were all put on dignity at work training and that wasn’t a coincidence. There was no connection with the Complainant’s complaint and their training. That training was only for management and was organised independently. The Complainant stated that the information she gave on the phone about her complaint should have been taken seriously and as a formal complaint. It was taken seriously, and she was told how to progress a formal complaint. Every complaint has to be made in line with the policy. The complaint has to be in writing. Because the complaint wasn’t made in writing a designated person wasn’t appointed to it. A phone call is not sufficient to commence a grievance or a complaint. EB - took the Affirmation and gave evidence as follows: EB met with the Complainant after she had spoken to CC before the meeting. A H&S form was sent to her so the Respondent would have a documentary account of her issues. BE met with her in person. She alluded to an incident within Rosslare port but from what EB understood it was a disagreement with an Irish rail employee. She didn’t want to progress the matter. She also stated that a spread sheet she had produced was amended by other individuals without her consent. EB agreed to look into that for her. He repeated that the dignity at work policy was available to her. She did not file on a H&S report in relation to the Irish rail incident nor did she invoke any of the policies. The Complainant argued that when she was moved to Rosslare, she had to work excessive hours. When she moved there, there was a pre-existing animal welfare unit and a team of three. The three staff set their own hours. They were quickly moved to port controls division and then they were on three days on two days off like everyone else there. The Complainant stated that when she was there the others went on holidays, so she was there alone and had to do the work herself. The Complainant alleges that an email she sent was leaked because she used the word “Mafia” in her statement and another employee used that word, and that couldn’t be a coincident. EB investigated that allegation but could find no evidence that the email send to RD was sent to anyone else. The Complainant asked EB why it was so difficult to get a copy of the email she sent to him about a meeting they had after she came back to work. EB stated that his role wasn’t to review specific emails from him to the Complainant and in the reverse. His role was to process Freedom of Information Act requests. RC took the affirmation and gave his evidence as follows: He is the assistant principle in HR. He outlined a list of the Respondent’s policies. All of the policies at the point of induction are made available in a pack to each employee. There are also electronic versions on-line and are available to all employees. The Complainant was initially assigned to XXXX Port and then after a transfer request she was moved to XXXX Port. There were no complaints from her time in the first port. She moved to the 2nd port D..M , then it was incorporated into the I…S division. There is an online system where someone’s absence is recorded. When recording it, there is a drop- down menu. Included in that is “stress”. The Complainant stated that when she had returned to work, she and her line manager had inputted “stress” as the reason for the absence. Subsequent to that she got a doctor’s certificate. That was uploaded to the NSSO. They pay the wages. The NSSO reconcile that with what is input on the local system. The medical certificate stated “medical illness” not stress. The officer concerned then recategorized the reason as “undisclosed” as a result of that. In early March she had a one-day absence. The return to work paperwork hadn’t been completed. That led HR to think that she was still out sick. That is why they contacted her in relation to seeing the CMO. Once the confusion had been clarified she did not need to see the CMO. CR from HR engaged in email correspondence with the Complainant about recharacterization of her absence in relation to increments. The Complainant was coming up to the point where she was due an increment (2 years) but because she had exceeded her sick leave, he informed that her increment wouldn’t fall due. She was informed that she could seek to have that sick leave discounted and if that was successful, she would get her increment. She would have had to provide medical information that the reason for her absence was non occurring. She did not make that application. Her one-month period of absence, March to 24th April 2022, she received correspondence from DB from the department of social protection. When somebody goes out on sick leave, they can upload a sick certificate onto the system. That is uploaded to the NSSO. Separately an NC1 cert is sent to the Department of Social Protection. He queried the absence with the Complainant because the illness didn’t qualify of illness benefit under the scheme. For this period of absence, she furnished a certificate stating “medical illness”. No other certificate or report was furnished. There was an inspection by the WRC inspectorate 01.11.2023. Following that a contravention notice was issued in relation to the OWT. The Department took remedial action immediately and the inspectorate were satisfied with that. That was the end of the matter. The Complainant says that she was penalised because she was ill due to work related stress. She said that she was penalised because her doctor didn’t put down on the form what she was actually ill with. It’s her doctor’s fault she says. The Respondent has no control over what her doctor wrote on her sick certificate. The Complainant alleged that HR made the decision not to send her to the CMO even though she was off for a month. As explained earlier, once the leave was clarified she did not need to go to the CMO. |
Findings and Conclusions:
The Respondent made an application to have this matter heard in camera and to have the decision anonymised. Due to the sexual nature of some of the complaints and because some of the witnesses are no longer available to defend the allegations, one being deceased, I found that it was an appropriate matter to hear in camera and I have anonymised the decision. CA-00055757 -01 This claim was withdrawn by the Complainant. CA- 00058842 – 001 The Complainant filed this complaint under Unfair Dismissals Act on the 14.09.2023 after the first day of the hearing. The Complainant’s employment with the Respondent ceased on the 14.11.2022. The Respondent argues the complaint is out of time and as a result I have no jurisdiction to hear the matter. Section 41 ( 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 six months beginning on the date of the contravention to which the complaint relates. Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'. “Reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time. The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll. Here the test was set out in the following term; “It is the Court’s 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 reasons and not be irrational or absurd. In the context of 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 within 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 had not been present, he would have initiated the claim on time.” In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should have been enlarged for “good reasons” in judicial review proceedings pursuant to Order 84 Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU and others. The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation . Here Costello J (as he then was) stated as follows; “The phrase “good reason” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reason for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved Plaintiff believed that he or she were justified in delaying the institution of proceedings. What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reasons for the delay and to establish that the reasons relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the Applicant to establish a causal link between the reasons proffered for the delay and his or her failure to present the complaint in time. Thirdly, I must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Finally, while the established test imposes a relatively low threshold of reasonableness on an Applicant, there is some limitation on the range of issues which can be taken into account.” In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The Complainant made no argument as to why the time should be extended. In addition, I find that the Complainant was very active during the relevant time period, and she was sending correspondence to the WRC on a regular basis in relation to her various claims. On that basis I find that there are no grounds upon which I could extend the time beyond the original six-month period specified is Section 41(6) The complaint fails. CA-00058829-001 The Complainant filed this complaint under the Employment Equality Act alleging discrimination on grounds of age and civil status. The complaint was filed on the 15.09.2023 after the first day of the hearing. The Complainant’s employment with the Respondent ceased on the 14.11.2022. The Respondent argues the complaint is out of time and as a result I have no jurisdiction to hear the matter. Section 41 ( 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 six months beginning on the date of the contravention to which the complaint relates. Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'. “Reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time. The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll. Here the test was set out in the following term; “It is the Court’s 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 reasons and not be irrational or absurd. In the context of 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 within 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 had not been present, he would have initiated the claim on time.” In that case, and in subsequent cases in which the question arose the Court adopted an approach analogous to that taken by the superior Courts in considering whether time should have been enlarged for “good reasons” in judicial review proceedings pursuant to Order 84 Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU and others. The test formulated in Cementation Skanska v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dunlaoghaire Corporation . Here Costello J (as he then was) stated as follows; “The phrase “good reasons” is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved Plaintiff believed that he or she were justified in delaying the institution of proceedings. What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reasons for the delay and to establish that the reasons relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the Applicant to establish a causal link between the reasons proffered for the delay and his or her failure to present the complaint in time. Thirdly, I must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Finally, while the established test imposes a relatively low threshold of reasonableness on an Applicant, there is some limitation on the range of issues which can be taken into account.” In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings. The Complainant made no argument as to why the time should be extended. In addition, I find that the Complainant was very active during the relevant time period and was send correspondence to the WRC in relation to her various claims on a regular basis. On that basis I find that there are no grounds upon which I could extend the time beyond the original six-month period specified is Section 41(6) CA-00054991- 001 The Complainant filed a complaint pursuant to the Employment Equality Acts alleging she was discriminated on by the Respondent on grounds of gender, disability and race (including harassment and sexual harassment). The complaint was filed on the 10.02.2023. In the complaint form, the date of the most recent occurrence is 20.09.2022. The Respondent alleges the complaint is out of time however on the face of it I find that the complaint was filed within six months for the date of alleged most recent occurrence. However, when the Complainant gave her evidence the date of the most recent occurs in relation to her disability claim changed. The Complainant gave evidence that the date she disclosed her disability to the Respondent was the 25.04.2022 when she came back to work. The Respondent alleges that the Complainant never disclosed to them that she had a disability. The Complainant did email the Respondent on 14.03.2022 stating she had a migraine. However, the Complainant’s absence on the 15.03.2022, 24.03.2022 and 22.04. 2022 was marked as “undisclosed” rather that the “stress” she said she was actually suffering from. The Complainant wanted to mark her leave as stress related however, she was informed by the Respondent in an email dated the 18.06 2022 that in order to do so she would have to provide medical evidence of that. She was also informed by email dated 19.09.2022 that she could re-categorise her sick leave if she could provide medical evidence to the Respondent that the illness was no longer an issue and had been successfully treated. She never provided that evidence. Based on the evidence of the Respondent and the Complainant I find firstly that the complaint is out of time. Taking the Complainant’s case at its height, the date of the actual disclosure (which is contested) she states was the 25.04. 2022. The complaint was filed on the 10.02.2023. The Complainant stated in her evidence that she didn’t file the complaint within the six months because she “wanted to keep her head down and get on with it”. The Complainant did not make an application to extend the time pursuant to Section 41(8). Therefore, the disability part of her complaint is statue barred. Whilst I don’t have to go any further with this part of her complaint, for the sake of completeness I find that the Complainant does not meet the threshold for a disability within the meaning of the act primarily because she failed to provide any medical evidence of anything that could amount to a disability within the meaning of the act. The Complainant further alleges she was discriminated on grounds of Race. Her complaint can be summaries as follows: In February 2021 CC gave out about XX touching vets because the booths were too small. She felt that this was in reaction to her send the valentine’s day card to a vet. CC said, “if needs be X and Y can be deployed to the Northern Irish Boarder”. In March 2022 to June 2022 W rambled on about the IRA and the HEO did not intervene. In June 2022 MT shouted “Mr. Baker” in a cockney accent to a passenger on a ship. In September 2022 following the death of Queen Elizabeth an unknown person said “she is our queen too” In September 2022 a MT wrote a strange comment in Irish on the Complainant’s paperwork. In October 2022 someone commented on the Irish Ladies soccer team. In October 2022 some said “The famine” near the Complainant’s desk. In Melbury Developments Limited v Arturs Valpeters IEDA09171 it was stated: "Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85 places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule. " In Southern Health Board v Mitchell the Labour Court considered the extent of the evidential burden which the Complainant, under the Acts, must discharge before a prima facie case can be made out. It provided inter alia as follows: “The first requirement is that the Complainant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a Complainant must prove, on the balance of probabilities, the primary fact from which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination that the onus shifts to the Respondent to provide that there was no infringement of the principle of equal treatment”. The Complainant is Irish but does speak with a slight English accent. All of the alleged incidents of discrimination on grounds of race I find arose out of normal general conversations had within the workplace and were not said to the Complainant or about the Complainant. I find the Complainant seemed somewhat paranoid in relation to certain topics and without any evidence or reasons attached those comments or utterances to herself as been discriminatory against her. There is no evidence of that whatsoever. I find that a prima facia case of discrimination of grounds of race as not been established. Therefore, this part of the complaint fails. Gender and Sexual Harassment The Complainant in her complaint form, alleges that male workers within the Respondent entity made remarks of a sexual nature towards her whilst she was engaging in her work. No further details were given in the complaint form. The Complainant in her evidence outlined the incidents of sexual harassment as follows: March 2022, CC made a comment to her about a stapler being “shagged“. April 2022, On the day she came back she had a back to work chat with her EO. It was a very informal chat. The very next day she was insulted by her EO when he performed fellatio on his reading glasses. February 2021, after sending the valentine’s day card the situation was handled very badly by management “giving men at work a free rein to openly look at my breasts in a non-discreet way”. May 2021, after leaving drinks for OO he asked her to come over and stay at this house. Afterwards he shared intimate details of their night together with other employees. She had five months of being “slut shamed” after that. The Complainant filed her complaint with the WRC on the 10.02.2023. All of the alleged incidents of sexual harassment occurred between May 2021 and March 2022. The complaint was therefore filed outside of the six months provided for by the act. The law in relation to the matter is set out above. No application was made to extend the time pursuant to S41(8) therefore I find that the complaint is statute barred and according fails. CA 54991 – 005 S77 Employment Equality Act (1) A person who claims- (a) To have been discriminated against by another in contravention of this Act, (b) Not to be receiving remuneration in accordance with an equal remuneration term, (c) Not to be receiving a benefit under an equality clause or (d) To have been penalised in circumstances amounting to victimisation May, subject to subsection (2) to (8) seek redress by referring the case to the Director. (5) 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 discrimination or victimisation to which the case relates or as the case may be the date of it most recent occurrence. (b) On application by a complainant to Director 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. Victimisationis defined “if the employer penalises an employee because they have made a complaint under either the Employment Equality Act 1998 – 2015 or the Equal Status Acts 2000 -2015. The Complainant in her evidence stated that the detriment or penalty she suffered amounting to victimisation (or as she stated, penalisation) was the non- payment of the increment. The Complainant seemed confused about this part of her claim as to whether it was a penalisation claim or a victimisation claim pursuant to the Employment Equality act. In any event she said she suffered a detriment/ penalty in not been paid her increment. It is clear from the evidence adduced by the Complainant and the Respondent that the Complainant was asked to provide medical evidence in relation to the reason for her sick leave, but she failed to provide that to the Respondent or to the NSSO. In the absence of that information her leave could not be re-categorised. I am satisfied that the Respondent at all times acted within the parameters of the rules relevant to such payments and it was as a result of the Complainant’s refusal or failure to provide the information that led to the non-payment of the increment. In those circumstances I find that the complaint fails.
CA 54991 -004 5. (1) For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18 , a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6 , 7 , 8 , 9 or 10 . (2) For the purposes of this Act information is “relevant information” if— (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment. (3) The following matters are relevant wrongdoings for the purposes of this Act— (a) that an offence has been, is being or is likely to be committed, (b) that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services, (c) that a miscarriage of justice has occurred, is occurring or is likely to occur, (d) that the health or safety of any individual has been, is being or is likely to be endangered, (e) that the environment has been, is being or is likely to be damaged, (f) that an unlawful or otherwise improper use of funds or resources of a public body, or of other public money, has occurred, is occurring or is likely to occur, (g) that an act or omission by or on behalf of a public body is oppressive, discriminatory or grossly negligent or constitutes gross mismanagement, or (h) that information tending to show any matter falling within any of the preceding paragraphs has been, is being or is likely to be concealed or destroyed. (4) For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or territory. (5) A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer. (6) A disclosure of information in respect of which a claim to legal professional privilege could be maintained in legal proceedings is not a protected disclosure if it is made by a person to whom the information was disclosed in the course of obtaining legal advice. (7) The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure. (8) In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is. The Complainant in her evidence alleges that the email she sent to RD on the 30.09.2021 amounted to a protected disclosure. Therein she alleged the following: - Rota change when she was place on a new team caused her problems. - She sent a valentine’s card to a young vet she took a shine to. - Someone made a comment about her being deployed to the N. Ireland border. - Sexual harassment type comments were made to her. - Workers were gossiping about her. - She confided in a co-worker and that information was leaked to others. - She stayed over in a co -workers house one night and that information was leaked to her colleagues.
RD replied to the Complainant directing her to Employee Supports and gave her a copy of the Dignity at Work policy. It was recommended that she use those policies. Then on the 08.10.2021 the Complainant sent an email to her assistant principal officer stating “I have decided that I will just try to forget about my time at the Port”. She never did raise a grievance under any of the policies and she never took the matter any further. I find in all of the circumstances that the Complainant never actually made a protected disclosure instead deciding to “just try to forget about my time at the Port”. Therefore, the complaint is not well founded and accordingly fails.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA 00055757-001. The complaint was withdrawn. CA 00058842-001. The complaint is statute barred. CA 00058829-001. The complaint is statute barred. CA 00054991-001. The complaint fails. CA00054991-004. The complaint fails. CA 00054991-005. The complaint fails. |
Dated: 13-08-2024
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll
Key Words:
Industrial relations, civil servant, jurisdictions, statute of limitations, unfair dismissal, discrimination, victimisation, protected disclosure, burden of proof, disability. |
|