EDA2355

Appeal of Adjudication Officer Decision No's: ADJ-00037162 (CA-00048479-001)


BACKGROUND:
The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 20 January 2023. A Labour
Court hearing took place on 8 November 2023. The following is the Court's Determination:

DETERMINATION:

This case was scheduled for hearing on 7th July 2023. Prior to opening the hearing, the Court asked the Complainant’s representative to confirm the date the employment ended. The representative stated that as recorded on the WRC complaint form it was their submission that the employment terminated on the 19th August 2021.  They accepted that the date of dismissal was 22nd July 2021 and that the Complainant had been dismissed without notice. The representative stated that for the purpose of completing the complaint form they had added the statutory notice period to the dismissal date giving a final date of 19th August 2021.

 The Chairman explained that the Unfair Dismissals Acts 1977 provides that in a situation where the statutory notice of dismissal was not provided, the date of dismissal is taken to be the date that the statutory notice would have expired. However, no such provision is contained in the Employment Equality Acts. Therefore, as the Complainant stated he did not receive his statutory notice his employment must have ended on 23rd July 2021.   The complaint was submitted on 4th February 2020 therefore the cognisable period is 5th August 2019 to 4th February 2020 and the Court can only in the first instance, consider a breach within that timeframe.

 The Complainant’s representative submitted that the last occurrence of an act of discrimination was the 28th September 2021, which was the date the Respondent notified the Complainant that his appeal of the decision to dismiss him was unsuccessful.  It was submitted that as this had happened within six months of the date the complaint was submitted it was therefore on time.

It was put to the Complainant’s representative that the protection of the Acts was afforded to “employees” and as the Complainant was not an employee at the 28th September 2021, he would not have been protected under the Acts.

 The Complaints representative submitted that s8(1) of the Act states that “an employer should not discriminate against an employee or prospective employee” and that the Court should consider the Complainant to be a prospective employee. The Court rejected this argument on the basis the prospective employee applies to people yet to commence employment which was not the case with the Complainant.

 The representative of the Complainant submitted that this preliminary issue as to whether the complaint was on time and whether there was a breach of the Act during the cognisable period, had only arisen on the day of the hearing and that the Complainants representatives are from the Citizens Information Service and not legal professionals. The representative sought an adjournment to allow them to get legal advice on the preliminary issue as to whether or not the complaint was in time.

 Following a short adjournment, the Court decided to grant an adjournment to allow the parties furnish written submissions on the preliminary issue of whether or not the complaint was in time.

 The hearing reconvened on 8th November 2023. In opening the hearing, the Court informed the parties it would hear them on the preliminary issue of whether there was an act of discrimination within the cognisable period first, then decide how it would proceed. Both parties had availed of the opportunity to make additional submissions addressing the preliminary issue.

In the course of the hearing the Court sought clarification from the Complainant in respect of their alternative position set out in their submission, that if the Court did not find in favour of their first argument that the Court would extend the time for the making of the complaint as provided for under 77(5) (a) and (b) of the Acts. The Court sought clarification as to whether or not the Act provided for the Labour Court to extend the time in circumstances where that issue had not been addressed at first instance and drew the parties attention to section 77(5) (a) and (b) and s77 (12) of the Acts.

 The representative for the Complainant while accepting that they had raised this issue, informed the Court that they would need to seek legal advice on the clarification sought by the Court and sought another adjournment. The Representative for the Respondent strongly objected to a further adjournment being granted.

 The Court took a short break to consider the application for a further postponement. The Court took account of the fact that the Complainant had representation, that the case had already been adjourned once at their request to allow them seek legal advice, that the Respondent with their representative and witnesses  had now on two occasions appeared before the Court and that  we were still dealing with the preliminary issue of whether or not there was  a valid complaint within the cognisable period.  The Court cognisant of the fact that it had to be fair to both parties decided it would not facilitate a further adjournment, and informed the parties that it did not believe it would be appropriate to grant a further adjournment to allow the representatives for the Complainant get legal advice on an application that they had made. However, at the conclusion of the hearing on the preliminary matter, the Court was prepared to allow the parties two weeks to make a written submission on the issue. These submissions would be taken into consideration by the Court in its deliberations on the preliminary issue.

  By email of 14th November 2023, the representative of the Complainant contacted the Court seeking clarification on what they were to make submissions on.

 The Court responded by email of the 15th November 2023 advising that the Complainant had  “made an application to be permitted to make a written submission on the jurisdiction of the Court to hear an application for an extension of time under the employment equality Acts and in respect of the minimum notice case under the Workplace Relations Act 2015 in circumstances where the issue had not been raised at  first instance hearing and no decision of  An Adjudication Officer existed. The Court acceded to his application and allowed two weeks from the date of the hearing for receipt of the submission.”

 The Complainants submission was received on 22nd November 2023 and the Respondents was received  on the 4th December 2023.

Summary of Complainant’s submission on the preliminary issue.

 The Complainant submitted that Council directive 2000/78/EC of 27 November 2000 establishes a general framework for equal treatment in employment and occupation. Article 9 requires that Member States ensure that judicial and or administrative procedures are available to all persons even after the relationship in which the discrimination is alleged to have occurred had ended. In support of this submission the representative for the Complainant cited the CJEU case of Coote v Granada Hospitality C-185/97 paragraphs 24-25. At paragraph 24 the CJEU stated

 “ The principle of effective control laid down in Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provided did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive”

 Paragraph 25 goes on to say

 “In those circumstances, it is not possible to accept the United Kingdom Government’s argument that measures taken by an employer against an employee as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment do not fall within the scope of the directive if they are taken after the employment relationship has ended.”

 The Complainants representative submitted that the Complainant was covered for the period after he was dismissed by section 2 of the Acts which defines employee as “a person who has entered into or works under or where the employment ceased entered into”

 They also cited a number of decisions at first instance, where a complaint was taken after the employment ended, and the Adjudication Officer had upheld the complaint.

 The Complainant’s representative submitted that in this case there was a continuum of acts of discrimination, cumulating in the final act of discrimination on the 28th September 2021 when he was notified that his appeal against his dismissal was not upheld.  That act of discrimination was within the cognisable period.

 The Complainant’s representative submitted that in the alternative, they requested that the Court use its discretion under the Act to extend the time limit for the making of the complaint for reasonable cause. They submitted that the length of delay was short and arose from the fact that they thought that the notice period could be added to the date of dismissal which would bring the complaint in time.

 In their second additional submission dated 22nd November 2023,   that the Court at their request facilitated, the Complainant’s representative again relied on s77 (5 (a) of the Act in seeking an extension of time but did not address s77 (5) (b) or s77 (12) as requested by the Court in the course of the hearing on the 8th of November 2023.  In their submission the Complainant’s representative also submitted that if the Court concluded it did not have jurisdiction on the ground that the issue was not raised before the WRC, then it requested that the Court remit the issue back to the WRC.

Summary of Respondents submission on the preliminary issues

The representative for the Respondent submitted that the date of dismissal was 23rd of July 2021, and that, the mere fact of the outcome of an appeal process being issued on the 28th September 2021, could not in and of itself constitute an act of discrimination. The Complainant had invoked the appeal process, and the issuing of an outcome to that appeal, was a natural consequence of his invoking his right to appeal the decision to dismiss him.  The Complainant has raised no issue about the appeal process per se but submits that the fact that the appeal was not upheld was discriminatory. No comparator has been citied in terms of this alleged act of discrimination.

 In relation to the Complainant’s submissions on EU caselaw law and the relevant European Directives, the requirement contained in same, is that provision is made for complaints to be processed after the employment has terminated.  That requirement is provided for in the Acts subject to the six months’ time limit. Article 17 (3) of the directive which states, “paragraphs 1 and 2” are without prejudiced to national rules relating to time limits for bringing actions as regards the principle of equal treatment” recognises national rules relating to time limits.

 In the case of Coote v Granada Hospitality, it is accepted that an act of discrimination occurred after the employment relationship ended. However, in that case the employer by refusing to give the employee a reference contributed to the difficulty of the Complainant in obtaining a new employment. This was found to be a new act of discrimination. In the case to hand there is no new act of discrimination. The issuing of the outcome of a process initiated by the Complainant cannot in and of itself, constitute an act of discrimination.

 In the case of County Cork VEC v Ann Hurley EDA1124, the Court determined that in order for it to consider if there was a continuum there has to be a breach of the Act during the cognisable period. The Complainant is this case has failed to identify a breach of the Act during the cognisable period.

 It is submitted by the Respondent in the instant case that all requisite elements of any alleged actionable discrimination claim existed only on the 23rd July 2021, when the Complainant was dismissed. There is no provision in the Complainants contract or the Respondent’s policies providing for a stay on the date of dismissal until an appeal of same is complete.

 The Complainant’s representative submitted that the act of issuing of an appeal outcome was discriminatory in relation to the workers disability, in that he was treated differently than a comparator would be in those circumstances. However, they have not provided any factual information to support that statement. 

 In respect of the Complainant’s application that the Court grant an extension of time to bring the complaint within the time limits, the Court invited the parties to set out where, in circumstances where this issue had not been addressed at first instance, the Court has jurisdiction to extend time for reasonable cause. The Court asked the parties to comment on sections 77(5) (a) and (b) and section 77(12). The Complainant did not address these questions in their submission.

 It is the Respondents submission that the sections cited above, do no give jurisdiction to the Labour Court to extend the time limits for submission of a complaint in circumstances, where that issue has not been addressed at first instance. The Respondent also submitted that contrary to what the Complainant is requesting, in this instance, the Court does not have jurisdiction to refer the matter back to the WRC.

Relevant law

Section 77 at relevant parts states.

Section (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.

 Section(12)

[(a) Not later than 42 days from the date of a decision of the [Director General] on an application by a complainant for an extension of time under subsection (5), the complainant or respondent may appeal against the decision to the Labour Court on notice to the [Director General] specifying the grounds of the appeal.]

(b) On the appeal the Labour Court may affirm, quash or vary the decision.

(c) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the [Director General] on such an application until—

(i) the period of 42 days mentioned in paragraph (a) has expired, or

(ii) any appeal against it has been determined,

whichever first occurs.

Discussion.

The Complainant’s representative made a number of submissions as follows. Their original position was that the complaint was in time as they had added statutory notice to the date. However, they accepted that the Acts do not provide for adding on statutory notice when calculating the date of dismissal if statutory notice had not been paid.

 They then submitted that the word prospective could be interpreted to mean someone who had left the employment but did not dispute that the word prospective meant somebody who had not yet joined the employment.

Having been afforded an adjournment and an opportunity to make a further submission, they submitted that an act of discrimination could occur after the employment had ended and that the issuing of the outcome of his appeal to the Complainant on the 28th September 2021 was such an act.  The fact that his appeal was not upheld constituted an act of discrimination at the time he was notified of same. In their submissions the Complainants representative did not set out details of the discriminatory act or who the relevant comparator was. In response to a question from the Court, the representative confirmed that it was their position that the fact that the appeal was not successful was an act of discrimination on the disability grounds.

 The Court sought clarification on what the Complainant was stating was the Act of discrimination. The representative stated that the mere fact that the appeal was unsuccessful was sufficient to meet a prima facia case of discrimination. In response to a question from the Court about a comparator, it was their submission that a person who did not have a disability and who appealed a decision to dismiss would have their appeal upheld. The representative confirmed that they did not have any evidence to support that statement, but that was their belief.

 Taking all the written submissions and the oral submissions on the day of the hearing into account the Court determines that the Complainant has failed to establish primary facts in support of the assertions that the issuing of the outcome of an appeal process, and the fact that the appeal was not upheld were discriminatory. The Court determines that the Complainant has not made out a prima facie case that there was a discriminatory act on the 28th September 2021. A mere assertion is not sufficient to make out a prima facie case.

In respect of the Complainant’s alternative position. The Complainant’s representative did not address the questions the Court had raised  in respect of its jurisdiction in either their oral submissions or their additional written submission in respect of the fact that the Act at section 77 (5 ) (b ) only provides for the Director General or the Circuit Court  to direct an extension of the 6 month period neither did they address  section  77 (12)(b) which states that the Labour Court can only deal with this issue on appeal of the decision of an Adjudication Officer in respect of same.

 The Respondent in their submission stated that the jurisdiction of the Court was limited to hearing an appeal from an Adjudication Officer where the Adjudication Officer had heard the case in respect of an extension of time and that had not happened in this case. Taking the submissions and the legislation into account the Court determines that it does not have jurisdiction to extend the time limits in circumstances where this issue has not been heard at first instance and no decision from an Adjudication Officer on this matter has issued.

  The following two issues were not raised by the Complainant’s representative in their original submissions or in the course of the hearing. They were included with the extra submission that was facilitated by the Court to allow the Complainant’s representative to seek legal advice on the jurisdiction of the Court to extend time in circumstances where there was no decision of an Adjudication Officer in respect of that issue.  In the interest of completeness, the Court decided to address the issues.

The first issue was in respect of the Complainant’s submission that the Court send the issue back to the WRC. The Complainant’s representative did not identify the section of the Act they were relying on that gave the Court jurisdiction to do this, on that basis the Court could not establish the legal basis being relied on in terms of that application, and the application must fail.

The final issue was that they sought that the Court re open the hearing on the preliminary issue of time limits to allow the Complainant give evidence. Again, no legal basis was put forward in support of this application. The Court taking into account the fact that the Complainants representative had the opportunity to put the Complainant into evidence at the hearing of 8th November 2023, but did not exercise that option and the requirement to be fair to both parties, determined there was no basis for holding a further hearing on the preliminary issue.

 Taking all of the above into accounts the Court determines that the complaint was out of time and that the Complainant has failed to identify a breach of the Act within the cognisable period.

Determination

The Court determines the Complainant has not identified a breach of the Act within the cognisable period. The date of dismissal was 22nd July 2021, and the complaint was made outside of the time limits. The decision of the Adjudication Officer is upheld.

 The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CC	______________________
20 December 2023	Deputy Chairman