ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00050675

Parties:

Complaints:

Date of Adjudication Hearing:  11/09/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, 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.

Background:

The Complaint is that the Respondent discriminated against the Complainant when it failed to advise her of a promotional opportunity when she was on maternity leave.

Summary of Complainant’s Case:

The Complainant stated that she was employed by the Respondent for some 17 years.  Her role was as Department Manager.  She went on maternity leave in February 2022.  In June 2022 she was contacted by a Manager to tell her there were some changes coming but no specifics were given.  She contacted the company by letter in August 2022 asking were there any opportunities but did not receive a reply.  She was contacted by phone in December 2022 by the Store Manager who told her an Assistant Manager was appointed.  She was disgusted that after all her years’ service she had not been told of the Assistant Manager job.  She was talking to another employee who was on maternity leave and she had been told of the vacancy.  She could not understand how one employee could be told and she was not.  She spent many months trying to get answers without success.  She does not use the company BrassRing system which she was told she should have used to apply for jobs.  She believes she has been discriminated against and treated unfairly by the Company. 

Summary of Respondent’s Case:

The claim in essence is that the complainant believes that the company, by failing to inform her of a vacancy for an Assistant Manager role which became available while she was on Maternity Leave constitutes discrimination. The complainant has not been explicit on what ground she feels she was discriminated under. The respondent company disputes the complainant’s assertion of discrimination under any ground.

It is the Respondent’s position that the claim CA- 00061525-001 taken under the Equal Status Act 2000-2015 is clearly misconceived as it was taken under the wrong legislation. The Complainant was employed by the Respondent therefore was not denied access to employment as is prohibited by the Acts. The Respondent respectfully submits that the Adjudication Officer does not have the jurisdiction to hear the claim and that the claim is dismissed accordingly.

The Complainant commenced employment with the Respondent on 20th September 2007. She began employment with the Respondent on a Trainee Manager Contract. She is currently still in employment as a Department Manager in the Respondent’s store.

Time Limits

In her WRC Claim Form the Complainant alleges that the date of discrimination occurred on 22nd February 2023. However, it is the respondent position is that the actual date of any alleged discrimination was the date upon which the Assistant Manager role became available. It is the non-notification of this vacancy which the complainant is asserting as the discriminatory act.

The Assistant Manager role was advertised through the normal channels and visible on the respondent’s recruitment site in the first two weeks of October 2022. The role was filled in November 2022. The complainant indicated that she was made aware of these facts in December 2022. The Respondent therefore understands the alleged date of discrimination to be December 2022 at the latest as this was when the complainant was informed by the company that the role had been available and was filled. Given that the Complainant submitted her claims to the WRC on 7th February 2024 and 20th February 2024 the Respondent respectfully submits that the Adjudication Officer does not have jurisdiction to hear this complaint. It is respectfully submitted that the matter is stature barred.

Section 41(6) of the Workplace Relations Act, 2015 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”.

Whilst Section 41(8) of the Workplace Relations Act 2015 provides that the six-month time limit should apply and that it can only be extended due to ‘’reasonable cause’’ it is respectfully submitted that as the complaint, which was submitted more than 12 months after the alleged act of discrimination, is manifestly out of time. It is clear that the Complainant has not submitted her claim within the period of six months, beginning on the date that the Complainant alleged she was discriminated against, due to her not being notified of an opportunity to apply for the position for Assistant Manager with the Respondent, nor has she in fact submitted it within the maximum twelve-month period permissible under the Workplace Relations Act, 2015. It is respectfully submitted that the matter is statute barred.

Without prejudice to the foregoing, the Complainant alleges that the date of discrimination was 22nd February 2023. She submitted two claims WRC on 7th February 2024 and 20th February 2024. The Respondent respectfully submits that should this date (disputed by the respondent) be accepted by the Adjudicator that the claim is also out of time. Section 41(8) of the Workplace Relations Act 2015 states that an adjudication officer may entertain a complaint or dispute after the expiration 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. The Respondent respectfully submits that the Complainant not provided reasonable cause for failure to submit their claim with the 6-month timeframe set out in the Workplace Relations Act 2015.

Findings and Conclusions:

CA-00061525-001           Equal Status Act 2000

The Equal Status Act 2000 prohibits discrimination in relation to access to goods and service.  The Complainant in this case is an employee, not a person seeking to purchase goods, or gain access to services. The complaint is misconceived under the Act and is not well founded.

CA-00050675                   Employment Equality Act 1998 – 2015

Section 6 (2A) of Employment Equality Act 1998 as amendedprovides: 

“(2A) Without prejudice to the generality of subsections (1) and (2), discrimination on the gender ground shall be taken to occur where, on a ground related to her pregnancy or maternity leave, a woman employee is treated, contrary to any statutory requirement, less favourably than another employee is, has been or would be treated”.

The Complainant contends that she was unfairly treated when during her maternity leave, a position of Assistant Manager was advertised and filled without notification to her of the vacancy.  The comparator she states who did receive notice and in her view encouragement to apply for the role of Assistant Manager is another woman who was on maternity leave.    

There was a long running dispute regarding the matter between the Complainant and the Respondent Employer.  The facts in relation to the time limit issue must first be decided before the substantive issue.

Time Limits

The complaint was received by the WRC on 7 February 2024.

The Complainant was on maternity leave from February 2022.  There followed a period of extended maternity leave and parental leave.  During her maternity leave, she was advised of a re-structuring of the Store Management system in general terms.  She was not advised specifically of the introduction of the Assistant Manager role.  The Assistant Manager role was advertised on the Company system BrassRing in October 2022.  She did not apply as she did not use the BrassRing system.   She was advised by colleagues in December 2022 that the position was filled and there was a new Assistant Manager.  She professed herself to have been disgusted at this news.  There then ensued a number of exchanges and meetings culminating in a final closure of the internal grievance in December 2023. 

Section 41(6) of the Workplace Relations Act, 2015 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”. (emphasis added). 

Section 41 (8) provides:

“an adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after 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”.

The complaint that the Complainant makes is the failure of the Respondent to advise her of a specific Assistant Manager position which was advertised and filled during her maternity leave.  She was made aware of the filling of the position in December 2022, some 14 months before the submission of her complaint.  The fact that the Complainant went through the grievance procedure should not have prevented her from submitting her complaint.  The law provides for a maximum of 12 months within which to file a complaint and no exceptions to this maximum period is permitted.    I find the complaint to be out of time and not well founded.

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 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-00061525-001          Equal Status Act 2000

I have decided the complaint is misconceived under the Act and is not well founded.

CA-00050675                   Employment Equality Act 1998 – 2015

I find the complaint to be out of time and not well founded.

Dated:   15th November 2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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