ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00046170

Parties:

	Complainant	Respondent
Anonymised Parties	Health Care Assistant	Health Service Executive

Representatives

Anne Marie Giblin BL/Jennifer Gibbons Concannon Solicitors

Emmet Whelan Byrne Wallace Solicitors

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00057029-001	08/06/2023

Date of Adjudication Hearing: 07/01/2025

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This case had been put back on number of occasions arising from the failure of the Respondent to attend allegedly due to breakdown in internal communications due to a transfer of staff and then due to the absence of a key witness that would be required to attend at the hearing. The matter referred to the Commission relates to alleged sexual harassment. The case was set down for a face to hearing that took place in Ennis on 7th of June 2023.

At that hearing the Solicitor for the Respondent stated that the Complainant was out of time by 2 years. The complaint was lodged with the Commission on the 8th of June 2023 and the alleged discrimination occurred on or about June 2021.

Continuing Discrimination:

Counsel for the Complainant stated that the discrimination continued, and that the Complainant was led to believe that the internal investigation of her complaint was conditional on her not referring her complaint to the Gardai and not instructing a solicitor.

The Respondent denied that discrimination continued, and that any misrepresentation has taken place to cause the delay.

The Act at section 79 provides for the following:

(3A) If, in a case which is referred to the Director General of the Workplace Relations Commission under section 77, a question arises relating to the entitlement of any party to bring or contest proceedings under that section, including:

(a) whether the complainant has complied with the statutory requirements relating to such referrals,

(b) whether the discrimination or victimisation concerned occurred on or after 18 October 1999,

(c) whether the complainant is an employee, or

(d) any other related question of law or fact,

the Director General of the Workplace Relations Commission may direct that the question be investigated as a preliminary issue and shall proceed accordingly.

And:

(6) At the conclusion of an investigation under this section (including an investigation of a preliminary issue under subsection (3) or (3A)), the Director General of the Workplace Relations Commission shall make a decision and, if the decision is in favour of the complainant—

(a) it shall provide for redress in accordance with section 82, or

(b) in the case of a decision on a preliminary issue under subsection (3) or (3A) it shall be followed by an investigation of the substantive issue.

The Respondent Solicitor also stated that the complaint being pursued offends the principle in Henderson and Henderson.

Reconvened Hearing Preliminary Matter:

As the matter of time is central to the whether the substantive case can be heard, the Adjudicator decided that a reconvened hearing would consider whether the claim was statute barred.

The parties were written to on the 11th of June as follows:

Further to the hearing last Friday 7th June 2024 at Ennis several preliminary matters were raised:

• Time limits and continuing discrimination on the part of the Respondent

• Misrepresentation

• A related Personal Injuries Claim and the rule in Henderson and Henderson

The Complainant was directed to make written submissions on these preliminary matters within 4 weeks and that the Respondent on receipt would have 4 weeks to reply.

A remote preliminary hearing will then be held and if a party relies on any alleged oral representation(s) to make their case, then that will require sworn evidence to be given at the remote hearing. A written decision will issue regarding the preliminary matters

The allegation of sexual harassment relates to a date(s) in June 2021.

The Complainant was absent from work from December 2021 for a period.

The Respondent stated that at its height the discrimination continued to December 2021; however, it is argued that what is stated by the Complainant related to June 2021.

The complaint was lodged with the Commission on the 8th of June 2023.

The time for lodging a complaint is 6 months form the date of the alleged breach which in this case was June 2021.

Misrepresentation:

The Complainant also alleged that if a delay occurred it was due to a misrepresentation made to her by her manager. Her manager stated that if she went to the Gardai about her allegations the matter could not proceed internally.

The Complainant initially asked her Union to represent her and subsequently changed to a legal representative.

The Respondent stated that no misrepresentation occurred that would explain the delay or caused the delay, and that the Complainant had the benefit of Union Representation. She may have been told that a criminal investigation would take precedence over any internal investigation; however, she was never told that going to the Gardai would stop her right to an investigation or to pursue a work-related complaint.

Section 77 (5) sets out the time limits to make a complaint:

(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 of the Workplace Relations Commission] 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.

The Complainant relies on Alert One Security Ltd v Khan DWT72/2015 where the Labour Court held that where the complainant was ignorant of how to process a claim and was relying on assurances given to him by the employer that he was receiving his legal entitlements or that those entitlements would be met, time did not run. The Court stated it was well settled law that a material misrepresentation which caused or significantly contributed to a delay in presenting a complaint could constitute a reasonable cause.

In this case it is denied that any misrepresentation was given. What was said related to the precedence of a criminal investigation over an internal employment investigation where sexual assault is alleged. It is argued by the Respondent that the Complainant had availed of Union representation, and it cannot be argued credibly that her circumstances are in any way like that in Alert Security.

Continuing Discrimination:

The Complainant made a written submission to her line manager on the 10th of June 2021 and the final report was furnished on the 2nd of February 2023. It is alleged that the drawn-out process equates to a continuation of the suffering she experienced arising from the first instance of harassment. The Complainant relies on the case Dempsey v NUI Galway DEC-E2014-039.

Henderson and Henderson:

The Respondent withdrew this objection as the Commission was only being asked to adjudicate on the statutory matters within its remit and the personal injury claim had not been heard.

PRELIMINARY MATTER:

A relevant fact to be considered in this case relates to the fact that the Complainant had availed of Union Representation that later she complained about and how they managed her claim.

On the facts the Complaint is out of time unless it can be shown there is ongoing discrimination or misrepresentation has occurred that was relied upon.

The Complainant met her line manager on or about July 2021 and that she was considering going to the police. The Complainant believed she was told if she went to the police the HSE couldn’t or wouldn’t help her.

Her line manager went to HR who explained that the Complainant was frustrated about the pace of the investigation and that she was considering going to the Police. HR informed the line manager that the Complainant was entitled to go to the Gardaí or solicitors, but if a criminal investigation was commenced, that would like impact on the internal investigation as criminal investigation take precedence over an internal employment investigation. That was a statement of fact and had no impact on filing a complaint with the Workplace Relations Commission.

These matters of delay and an internal investigation were considered by the Labour Court in Ervia v Deaglan Healy PW/19/55 (Determination PWD2020) where it also referred to an earlier decision of the Court in Brothers of Chairty Services Galway v Kieran O’Toole [EDA 177]. The claim in Ervia concerned a performance related award. The Complainant felt the sum fell short of what was due to him and brought a claim under the Payment of Wages Act. A preliminary issue was raised in relation to time limits. The Court found:

“The Applicant has put forward a number of reasons to excuse the delay and to obtain an extension of time. They related, in the main, to his processing of an internal grievance, and his mistake in referring the claim to the Inspectorate service of the WRC instead of the Adjudication Service of the WRC. The Court does not accept that the processing of an internal grievance can be considered as a cogent reason which prevented the lodging of a complaint under the Act in time. The Court is of the view that the Complainant cannot circumvent the time limit set out in the Act by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. The Court addressed this issue in Brothers of Charity Services Galway v Kieran O’Toole [EDA 177] where it held:

“The Court cannot accept that deploying the Respondent’s internal procedures operated to prevent the Complainant from initiating the within complaints within the statutory time limit provided under the Acts.”

Furthermore, the Court cannot accept that there was any obligation on the Respondent to advise the Applicant of the statutory time limit provisions of the Act. The Applicant informed the Court that he had already put the Respondent on notice that he was considering such a course of action. The Court is of the view that it is a fundamental principle that ignorance of one’s legal rights and responsibilities does not provide a justifiable excuse for a failure to bring a claim in time or to the appropriate body, as held by the High Court in Minister for Finance v CPSU and Ors, [2007] 18 ELR 36.”

It could be argued that this case is different arising from the lengthy delay to complete the investigation. However, I find that a distinction must be made been a statutory time limit and an internal investigation. Filing a complaint with the Workplace Commission stops time from running and that is a separate matter entirely to an internal process running.

In any case for continuing discrimination to be made out the acts complained of must be similar.

The Labour Court in Hurley v County Cork VEC (EDA1124) said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. The case of the Department of Justice Equality and Law Reform v A Worker(EDA1422), which involved a complaint of alleged discrimination by a prospective employer and the Labour Court determined that the complainant had failed to prove a continuum of discrimination between historic alleged instances of discrimination outside of the six month referral period and the alleged acts that the Court considered "in time" stating that the complainant failed to "establish a sufficient connection between the competitions such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions". The delay to finalise an investigation and the act of alleged harassment are very different acts and do not constitute a continuum.

The Complainant relies on Dempsey v NUI Galway DEC-E2014-039 to support her case. I note in Purdy Equality Law in the Workplace Bloomsbury May 2015 commentary on the case:

An interesting case here is Dempsey v NUI Galway, 51 where the Equality Officer, in finding for the complainant, went on to say:

‘I am satisfied that the complainant’s maternity leave and an ongoing disability after that leave together with the fact that she had raised her treatment in relation to having being asked to work while she was suffering from pregnancy related sick leave and also while she was on maternity leave was a contributing cause and had a “significant influence” on the respondent’s deliberations about the terms of the contract and in the overall treatment of the complainant.’

Taking all of that into consideration, the Equality Officer was satisfied that the complaint was well founded. Unlike in the UK, therefore, there is no basis for contacting a woman during her maternity leave and, more particularly, no basis whatsoever for asking her to work during that period. Hence, employers in this jurisdiction need to proceed with the utmost caution.

The Complainant has not made out case that the alleged act of Harassment and the allegation that the investigation was drawn out are a continuum.

The Labour Court considered the term misrepresentation in a Bank v A Worker EDA 104:

“The term misrepresentation is generally understood as referring to a false statement of fact, intended to be acted upon, which actually misleads the person to whom it is addressed. In the context in which the term appears in s. 77(6) of the Act operative misrepresentation can arise where:

(a) The Respondent makes a false statement of fact in respect to some material particular affecting a cause of action under the Act; (b) The Complainant believed the statement to be true, and (c) In reliance on the truth of the statement the Complainant delayed in initiating a complaint under the Act.

I find that there was no false statement of fact made to the Complainant that could cause the Complainant to delay lodging her complaint. If she believed that the internal investigation must finish first before she could lodge her complaint that is a mistake.

On the facts I must find that there was no continuing discrimination where the issuing of the final internal investigation report in February 2023 does not meet the test of an act linked to another act to form a continuum. I also find that the communication from the line manager about a criminal investigation taken precedence over an internal investigation does not constitute misrepresentation.

Summary of Complainant’s Case:

See preliminary matter

Summary of Respondent’s Case:

See preliminary matter

Findings and Conclusions:

See preliminary matter.

Decision:

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.

I find that there was not false statement of fact made to the Complainant that could cause the Complainant to delay lodging her complaint. If she believed that the internal investigation must finish first before she could lodge her complaint that is a mistake.

On the facts I must find that there was no continuing discrimination where the issuing of the final internal investigation report in February 2023 could not be considered a continuum and an act linked to another discriminatory act. I also find that the communication from the line manager about a criminal investigation taken precedence over an internal investigation does not constitute misrepresentation.

At its height the allegations of harassment continued until the end of December 2021 and the complaint was lodged with the Commission in June 2023. The Commission has no jurisdiction to hear the complaint as they are outside the time limits set down in the Act. I must dismiss the claim as I have no jurisdiction to hear the claim as it falls outside the 12-month period of alleged discrimination to bring a complaint to the Workplace Relations Commission by at least 18 months.

The Complainant was not discriminated against by the Respondent and the complaint is not well founded.

Dated: 27/01/2025

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Jurisdiction -Out of time