ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00048062
Parties:
| Complainant | Respondent |
Parties | Michal Fudala | Kerrigan Factory Shop Limited |
| Complainant | Respondent |
Anonymised Parties | {text} | {text} |
Representatives |
| Carol Vaughan HR:Duo |
Complaint(s):
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-00058937-001 | 20/09/2023 |
Date of Adjudication Hearing: 11/01/2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
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.
In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would normally be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.
The required Affirmation / Oath was administered to all witnesses presents. The legal perils of committing Perjury were explained to all parties.
The matter was heard by way of remote hearing on 11 January 2024, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
Correct name of Respondent
At the outset of the hearing the Respondent pointed out that the correct name of the Respondent is, Kerrigan Factory Shop Ltd, the Respondent had no objection to me correcting the name on the Decision. As outlined in County Louth VEC -v- Equality Tribunal [2009] IEHC 370 I am permitted to amend proceedings and in the circumstances, I believe it is appropriate to ensure that the Respondent is properly named in this decision.
Background:
The Complainant commenced employment with the Respondent, a butcher shop, on 16 June 2021. He resigned from his employment with the Respondent on 10 October 2023. He worked 43 hours per week and was paid a gross weekly pay of €701.92. The Complainant submitted a complaint to the WRC on 20 September 2023, alleging discrimination by reason of his disability, the most recent date of discrimination being 8 November 2022.
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Preliminary Point
The Respondent submits that the matter is out of time in that the date given by the Complainant in his complaint form as the date of the most recent date of discrimination is 8 November 2022, yet the compliant form was only submitted by him on 20 September 2023, well outside the expiration of the six months beginning on the date of the contravention to which the complaint refers. The Respondent put forward that the Complainant had gone sick from the Respondent’s employment in November 2022 and had never returned to that employment. The Complainant refuted the assertion that the complaint had been submitted too late. The Complainant outlined his attempts to have the matter sorted out and was unaware of the requirements of the Act. He had attended a solicitor in March 2023 regarding the matter. He had also suffered ill health between November 2022 and September 2023. The Complainant agreed with the Respondent’s assertion that he had gone sick from the Respondent’s employment in November 2022 and had never returned to that employment.
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Findings and Conclusions on the Preliminary Point
Section 77 of the Act states: (“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. (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 has indicated that the most recent date of discrimination was 8 November 2022, yet he did not submit his complaint to the WRC until 20 September 2023, well outside the six-month time limit. No reasonable cause has been provided to extend the reference period. As no contravention of the Act occurred within the cognisable period for his compliant, the Complainant was unable to establish any legal basis for his claim. Having regard to the above, I am satisfied that the Complainant’s complaint was presented to the Workplace Relations Commission outside of the relevant statutory time limit provided. The limitation periods set out in the 1998 Act are clear and precise and it is confined to those limitation periods. I cannot assume a jurisdiction which has not been conferred to me by statute and I do not have a ‘discretion’ to vary the time limits set down in relevant statutes. A failure on the part of a Complainant to present a complaint in time deprives the me of jurisdiction to hear the claim.
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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 have no jurisdiction to hear the complaint. |
Dated: 1st February 2024
Workplace Relations Commission Adjudication Officer: Roger McGrath
Key Words:
Out of time, time limits, jurisdiction |