EDA238

1. Appeal Of Adjudication Officer Decision No. ADJ-00032155 CA-00042609-003

BACKGROUND:

2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 17 August 2022. A Labour Court hearing took place on 25 January 2023. The following is the Court's Determination:





DETERMINATION:

This is an appeal by Mr Kevin O’Beirne against the decision of an Adjudicator Officer (ADJ-00032155 – CA-00042609-003, dated 10 August 2022) under the Employment Equality Acts 1998-2015 (“the Act”). The Adjudication Officer held that he did not have jurisdiction to hear the complaint. A Notice of Appeal was received by the Labour Court on 17 August 2022 and a hearing of the Court held on 25 January 2023.

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr O’Beirne is referred to as “the Complainant” and Aer Lingus is referred to as “the Respondent”.

Preliminary Issues

Two preliminary matters were raised with the Court addressing its jurisdiction to hear the appeal, relating to (i) time limits, and (ii) the status of a compromise agreement entered into between the parties.

Mr Seamus Given, Solicitor, on behalf of the Respondent, submitted that the complaint was not properly before the Court as it was out of time. He submitted that the complaint was lodged with the Workplace Relations Commission on 19 February 2021 almost three years after the Complainant’s employment ended on 4 May 2018. As the alleged complaint occurred outside the cognisable time period encompassed by the Act, it is out of time and statute barred. Furthermore, the Complainant asserts that he was victimised but has not specified which of the nine grounds specified under the Act that his complaint is based on.

Mr Given submitted that the Complainant entered into a compromise agreement with the Respondent in consideration of significant ex-gratia severance terms. The Complainant was legally represented when the settlement terms were negotiated. He was given every opportunity to consult with his legal advisors in advance of signing the Agreement. Under the terms of this Agreement the Complainant agreed to waive his right to bring any claims against the Respondent arising from his employment, and his termination, including any claims under, inter alia, the Employment Equality Acts.

The Complainant, who was unrepresented at the hearing, accepted that his complaint was lodged outside the timeframe specified under the Act. The Complainant acknowledged that when lodging his claim he had not indicated which of the nine grounds that his complaint was based on. The Complainant submitted that he felt conned into signing the compromise agreement in 2018. He had signed the agreement on the understanding that if he did not sign it the voluntary severance terms which were on offer to him, and other employees would be withdrawn. He said that he later learned through a chance meeting with a former colleague that the voluntary severance terms had not been withdrawn. Had he been aware that the severance terms remained available he would not have signed the compromise agreement at that time. The Complainant accepted that he signed a full and final settlement agreement that prevented him from taking further legal actions, and that he had the benefit of independent legal advice before signing that agreement.

RELEVANT LAW:

Section 77(5) of the Employment Equality Acts 1998-2015 sets out as follows:

(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.

DELIBERATION

A failure on the part of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim. Section 77(5) of the Act allows a claim for redress in respect of discrimination or victimisation to be lodged within 6 months from the date of occurrence of the discrimination or victimisation, or within 12 months, where the lodging of a claim within six months was prevented due to reasonable cause. No application was made by the Complainant for an extension of time due to a reasonable cause.

There is no dispute about the facts that have given rise to the preliminary matters before the Court.
In the within appeal a claim was lodged with the Workplace Relations Commission on 19 February 2021. Therefore, the cognisable period for the purpose of considering a complaint under the Act is the period from 19 June 2018 to 18 December 2018. It is clear that the claim was outside the time limits set out at Section 77(5) of the Act.

As a result the Court is satisfied that the Complainant’s original complaint was presented to the Workplace Relations Commission out of time and the within appeal is statute barred.

DETERMINATION:

The Court finds that the within claim was out of time when it was presented to the Workplace Relations Commission on 19 February 2021 and is accordingly statute barred. The Court determines that it has no jurisdiction to hear the substantive matter.

In these circumstances, it is not necessary for the Court to determine the second preliminary matter relating to the status of the compromise agreement entered into between the parties.

The appeal is disallowed, and the Decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Katie Connolly
OC	______________________
31 January 2023	Deputy Chairman