Complainant

Respondent

Parties

Mary  Matthews

Dundalk Institute Of Technology

Complainant

Respondent

Anonymised Parties

Representatives

Declan Thomas IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00059562-001

23/10/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was not represented and made her own case. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive narrative of the Complainant’s case in advance of the hearing. The Complainant had also provided me with some documentary evidence together with at least one EU decision which was helpful to the case she was making which was, however, a little different to one sought in the workplace relations complaint form..

No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent Representative.

The Complainant has brought a complaint under the Employment Equality Acts. Her complaint is brought under Section 86 if the Employment Equality Act 1998 which allows for a person who is affected by a collective agreement (being a person that is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement) and who considers the said agreement to be null and void may refer the question of that agreement to the Director General of the Workplace Relations Commission as a Complainant. 

The Complainant’s evidence was not entirely confined to the complaint raised but I allowed the Complainant develop her case over and above the Section 86 issue.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints which appeared to have been articulated in the Statement/narrative, but which had not been specifically particularised by this (unrepresented) Complainant.

The Respondent had IBEC representation at this hearing. The Respondent provided me with a written submissions dated 12th of April 2024. The HR Manger for the Respondent company was also in attendance. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case.

The Respondent rejects that there has been any Discriminatory treatment of the Complainant, and the Respondent further rejects that there are provisions of any collective Agreement operating in this workplace which are Discriminatory.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant has worked with the Respondent third level Education Institution for 20 years. The Complainant explained that she is a Grade III Clerical Officer. Whilst the Complainant has often acted up and been assigned work more in keeping with higher grades, she has never sought promotion herself.

From the evidence adduced and agreed between the parties an individual known herein as AB was appointed into a role in and around 2020. The Complainant was not immediately aware of this appointment and was surprised to note that AB was attributing an Administrative and Research Title to herself. The Complainant says that she was surprised that this role had not been advertised and has never accepted the process by which AB came to be in this position when she (as a competent Administrator) and others in the Research field would have been equally eligible to apply for the position had it been advertised. The Complainant got, she says, no satisfactory answer out of HR on this issue.

I note that the Complainant simultaneously triggered an in-house workplace Grievance as well as an Industrial Relations complaint through the WRC. I understand that this was in and around December of 2021. I understand that the Grievance at this time was in connection with the fairness or otherwise of the recruitment and selection process for the particular post into which AB was placed. It is worth noting that the issue of Discriminatory treatment was not raised at the outset or as part of the Industrial relations dispute.

It seems that the Industrial Relations dispute was heard by the Adjudication services and then on appeal to the Labour Court. The Complainant was dis-satisfied with the outcome. I have had sight of the Labour Court recommendation which found that it was reasonable to designate the post assigned to AB as a research position. It seems that modest recommendations which had been made in the Complainant’s favour at Adjudication level, were set aside in their entirety by the Labour Court. I can accept that eh Complainant was deeply upset at the outcome. I note that the final Labour Court recommendation issued in August of 2023.

It was four months after the publication of the Labour Court recommendation that the Complainant brought an entirely fresh complaint against the Respondent Employer. This is the complaint which comes before me at this hearing.

For the avoidance of doubt I am confirming that the Complainant has not specifically brought a complaint against the Respondent seeking redress from the Respondent in circumstances where she claims that her Employer behaved unlawfully and discriminated against her in the course of her employment wherein she says that she was treated less favourably than another person has or would have been treated in a comparable situation on one or all the grounds of discrimination. I have, however, been mindful of the fact that this was seemingly what the Complainant had intended. I say this in circumstances where the Complainant led no evidence relevant to  Section 86 of the Employment Equality Act 1998 which allows for a person who is affected by a collective agreement (being a person that is an employee whose remuneration or whose conditions of employment are, in whole or in part, governed by the agreement) and who considers the said agreement to be null and void by reason of discrimination.  

During her evidence, I did explore the possibility of this having been the Complainant’s intended course of action, and the Complainant suggested that she might have been excluded from consideration for the post awarded to AB on the grounds of her age. The evidence around this proposition was very weak, and it was difficult to see that the Complainant was in a position to make a Prima Facie case of discrimination. In any event it was not necessary for me to amend the proceedings along these lines as ultimately I do accept the Respondent’s argument that the Complainant was out of time for any such complaint.

In general terms, an Adjudication Officer cannot entertain a complaint presented after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates. Section 77(5) of the Employment Equality Act states:-

“…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.”

In limited circumstances, a complaint presented outside the relevant period may be entertained if the failure to present was due to reasonable cause. This will not exceed a twelve-month period.

The Complainant became aware of the purported acts of discrimination (not so found) during the course of 2021. The Complainant issues a complaint under the Employment Equality Acts on the 23rd of October 2023 – nearly two years later. Her complaint falls well outside of the time allowable under the Act.

The Complainant is therefore left with a complaint under Section 86. This section obliges the Complainant to make the case that a collective agreement relating to her workplace is in whole or in part null and void by reason of a seemingly inherent discrimination contained therein.

I am assuming that the Complainant speaks to the collective agreement which exists in this workplace for the recruitment and promotion processes. The Complainant has however failed to direct me to any such collective agreement or part thereof. The Complainant is aggrieved (on her own behalf and on behalf of those around her) at the manner in which AB came to hold the position she did. The Labour Court did not agree with the Complainant, and I am not minded to open up the issue that has already been dealt with. The Complainant seeks now to re-litigate the issue as one of discrimination without offering any evidence which demonstrates discrimination. A process when implemented may have been unsatisfactory but that does not make the underlying collective agreement null and void for being discriminatory. The Complainant has failed to make this or any case.

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00059562-001 – The Complainant has not established that any part of a collective agreement may be deemed null and void by reason of discrimination.