Complainant

Respondent

Parties

David  Hayden

Glenveagh Contracting Limited Glenveagh Homes

Complainant

Respondent

Anonymised Parties

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Representatives

Mr Duncan Inverarity - A&L Goodbody LLP

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-00060330-001

30/11/2023

The Respondent stated the complaint was out of time and statute barred. This was disputed by the Complainant. In response to the arguments on this preliminary matter I advised that I would hear the case and reserve my decision. I further advised that if I required more information and/or to arrange a resumed hearing, I would write to the parties by end of April 2024 – alternatively I would proceed with my decision.

Having considered the evidence and submissions at the adjudication hearing, I was satisfied I had obtained sufficient information to enable my decision making and accordingly, I did not request any further information from the parties nor seek a resumed hearing.

The Complainant commenced employment with the Respondent on 1/2/2021 and his Complaint Form stated that his employment ended on 19/12/2022. The Complainant’s Complaint Form was received by the WRC on 30/11/2023. The Complaint Form cited complaints of discrimination, victimisation, failure to provide reasonable accommodation, unlawful treatment and sexual harassment. The Complaint Form cited 19/12/2022 as the most recent date of discrimination. The Complainant outlined his complaints about his treatment in the workplace including discrimination, sexual harassment and bullying, the failure of the Respondent to properly investigate these and as regards obstruction of witnesses .

The Complainant stated he was medically advised to leave his employment. He also stated that he felt under duress to resign and was constructively dismissed. In his evidence the Complainant did not dispute his letter of resignation of 20/5/2022. In that regard, the Complainant accepted that his last date of employment was 17/6/2022, that his employment terminated on that date and that he was not in the workplace after May 2022. However the Complainant maintained that it was his “clear assertion that discrimination can occur (and has occurred) even after an employee has resigned from a company given that it is related to events that happened during my employment, and because it occurred during the negotiation & signing of a settlement agreement. In light of this, that date of my resignation is not valid here”.

The Complainant outlined his concerns with regard to the Settlement Agreement process which occurred during May - December 2022. In that regard the Complainant outlined his concerns in relation to obtaining a reference and his complaints about an Official of the Respondent who was involved in the Settlement Agreement negotiations, though he stated he had no direct contact with this person or with the Respondent between June and December 2022.

The Complainant stated that although he signed the Settlement Agreement with the Respondent on 19/12/2022, the Agreement did not meet the conditions to be enforceable. The Complainant cited a number of grounds as to why this was the case - including that he was not provided with expert legal advice, that the document was not signed and witnessed by a qualified legal adviser nor witnessed by his own Solicitor, that he signed the document under pressure and that he was not provided with a reasonable amount of time to consider its consequences.

It is the position of the Complainant that his “employment relationship” subsisted until 19/12/2022. Whilst the Complainant accepted he was in receipt of legal advice from his own Solicitor up to December 2022, he maintained it was only later that he understood and/or came to realise that he had been treated unlawfully with regard to the Settlement Agreement.

The Respondent stated the Complainant's employment terminated on 17/6/2022 as per the Settlement Agreement and the Complainant's letter of resignation of 20/5/2022. In addition, the Respondent referred to copy of a previous complaint to the WRC by the Complainant which cited 17/7/2022 as the date his employment ended.

The Respondent rejected the Complainant’s complaints about his treatment in the workplace and as regards the manner by which it dealt with those complaints. The Respondent also refuted the complaints that it obstructed witnesses at any stage. The Respondent stated that it appointed an independent Investigator to investigate the Complainant’s complaints of sexual harassment and bullying, that these complaints were fully investigated and that a final report issued on 12 May 2022 which by and large did not corroborate or uphold the complaints. The conclusion was there was no case to answer. Mediation was also suggested.

The Respondent refuted the complaints regarding the Settlement Agreement and stated the Complainant signed the Agreement and was legally advised by his own Solicitor throughout.

It is the position of the Respondent that the complaint was referred to the WRC more than 17 months after the last date of the Complainant’s employment with the Respondent, that the complaint was outside the cognisable period for bringing any such complaint – ie 30 May 2023 – 30 November 2023, that the Complainant had not raised any complaint during the cognisable period,  that there were no grounds to extend the time limit for “reasonable cause” and that even if such an extension was granted, the complaint would still be outside an extended 12 month time limit. The Respondent stated that the complaint was statute barred pursuant to Section 77 of the Employment Equality Act [1998-2022] and accordingly I did not have jurisdiction in the matter.

Section 77 of the Employment Equality Act [1998-2022] provides as follows in relation to the time limit for making a complaint to the WRC. A similar provision is contained in Section 41(6) of the Workplace Relations Act [2015 - 2021].

“77. A person who claims—…….to have been discriminated against or subjected to victimisation……

(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.

(5)(b) On application by a complainant the Director General of the Workplace Relations Commission……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”.

In relation to whether the time limit should be extended to 12 months for reasonable cause as provided for at Section 77(5)(b) of the Employment Equality Act [1998-2022], the Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows:

“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 reason and not be irrational or absurd. In the context in 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 not been present he would have initiated the claim in time.”

In the case of HSE and Dr Abdul Rauf [Determination No. FTD0817], the Labour Court stated that “A Complainant…..must also demonstrate that there are reasons but for which the case would have been referred in time” (emphasis added in bold).

Having regard to the foregoing and the evidence, documentation and submissions, I have come to the following conclusions:

·        I am satisfied the Complainant’s last date of employment in the Respondent’s workplace was on 17 June 2022. The Complainant confirmed this at the adjudication hearing and in his letter of resignation of 20/5/2022 wherein he stated “Please accept this as my formal resignation….My last day of work will be Friday 17th June (four weeks from today). I’m amenable to finishing earlier if that’s more convenient….” Accordingly, I do not accept the Complainant’s assertions that his employment with the Respondent subsisted beyond 17/6/2022;

·        As regards the Settlement Agreement, I note this was dated 19 December 2022 and was signed off by both the Complainant and the Respondent. As an observation, I am of the view that Settlement Agreements are a private matter between parties and – where applicable -their legal advisors;

·        I am satisfied the Complainant has not presented me with an adequate reason as to why I should exercise my jurisdiction to extend the time limit to twelve months for bringing his complaint - as provided for at 77(5)(b) of the Employment Equality Act [1998-2022]. Notwithstanding that the Complainant stated he was under pressure during this time, he has  not specifically requested an extension of time nor do I consider he has identified any particular circumstance or act but for which his complaint would have been presented within the initial six month period. Further, I am satisfied from the evidence and information presented to me that the Complainant was in receipt of legal advice during 2022;

·        As I have found that the Complainant’s last date of employment was on 17/6/2022 and as he did not return to the workplace or have any direct dealings with the Respondent after this date, I am satisfied that any complaint with regard to discrimination as per the grounds specified on the Complaint Form, victimisation or harassment in the workplace is out of time as it should have been submitted to the WRC within six months of 17/6/2022 or earlier;

·        Notwithstanding my determination that the Complainant’s employment relationship ceased on 17/6/2022, for the sake of completeness, I am also satisfied that any complaint pursuant to the Employment Equality Act [1998-2022] as may relate to the Settlement Agreement, should have been presented within six months of the signing of this agreement on 19/12/2022.

In light of the foregoing, I find that I do not have jurisdiction to determine this complaint or consider whether or not the Complainant has made out a prima facie case of discrimination.

CA-00047852-001

For the reasons outlined this complaint is not well founded. 

Time Limit