EDA2432

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00036288 (CA-00047453-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 20 November 2022. A Labour Court hearing took place on 16 August 2024.

The following is the Determination of the Court.

DETERMINATION:

Background to the Appeal

This is an appeal by Ms Geraldine Kinsella from a decision of an Adjudication Officer (ADJ-00036288, dated 11 October 2022) under the Employment Equality Act 1998 (‘the Act’). Notice of Appeal was received in the Court on 21 November 2022. The Court heard the appeal in Dublin on 16 August 2024. The delay in scheduling the matter for hearing was due to the Complainant’s representative’s late filing of submissions.

Factual Background

The Complainant was employed by Dublin City Council (‘the Respondent’) from May 2001 until 30 May 2023. She referred the within claim to the Workplace Relations Commission on 2 December 2021.

The Complainant initiated a number of different complaints against the Respondent prior to the within complaint. It is necessary to refer briefly to those earlier complaints in order to give some context to the within complaint.

The Complainant referred a complaint to the Workplace Commission under the Act on 7 November 2019 which she subsequently withdrew. The Complainant then referred two issues to the Workplace Relations Commission on 14 February 2020 under Section 13 of the Industrial Relations Act 1969. The first issue related to the Respondent’s bullying and harassment procedures. The second matter related to regularising “acting up” arrangements. The second matter had been resolved and was considered to be withdrawn when the combined hearing of both matters took place. The Adjudication Officer’s Recommendation issued on 26 July 2021 (ADJ-00027057). It recommended that an independent person be appointed to review an investigative process that had been utilised by the Respondent. The Parties were unable to reach agreement on terms of reference for the proposed review and the Complainant indicated that her intention was to refer that dispute to the Labour Court. That does not appear to have happened in circumstances where the Complainant chose instead to refer a separate complainant under the Act to the Workplace Relations Commission on 2 December 2021, the decision from which referral is under appeal here.

The Claim

As the initiating complaint under the Act was received by the Workplace Relations Commission on 2 December 2021, the relevant period comprehended by it commences on 3 June 2021. The Complainant must make out a prima facie case of discrimination on one of the nine protected grounds arising from some act or omission on the part of the Respondent in the period between 3 June 2021 and 2 December 2021. The Complainant’s representative furnished the Court with a lengthy written submission that recites in some detail the history of the Complainant’s disputes with the Respondent. The submission, however, does not make any attempt to establish a prima facie case of discrimination connected to any act or omission of the Respondent in the relevant period. When asked by the Court to specify the claim before it on appeal, the Representative stated that the claim arose from the Respondent’s failure to conclude the review process that had been recommended by the Adjudication Officer under the Industrial Relations Act 1969 in ADJ-00027057. The Representative was unable to specify which provision of the Act was thereby allegedly breached.

The Respondent submits that the within claim is out of time. It further submits that that it accepts that the Recommendation in ADJ-00027057 has not been fully implemented. Its position is, however, that that is due entirely to the frustration of the process by the Complainant’s Representative and their insistence on unworkable terms of reference that go well beyond what was recommended by the Adjudication Officer.

Determination

It is clear to the Court that there is a dispute between the Parties about the implementation of an Adjudication Officer’s Recommendation under the Industrial Relations Act 1969. However, the existence of such a dispute does not automatically ground a stateable complaint under the Act. The Complainant’s Representative has not identified any such stateable complaint. Nor has he made out a prima facie case of discrimination in the cognisable period. The complaint, is therefore, in the Court’s view, not well-founded.

The appeal is dismissed and the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
AR	______________________
26 August 2024	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary.