SECTION 19(5), EMPLOYMENT EQUALITY ACT, 1977
THE DEPARTMENT OF FOREIGN AFFAIRS
(REPRESENTED BY JOHN O'DONNELL B.L. INSTRUCTED BY THE CHIEF STATE SOLICITOR'S OFFICE)
- AND -
(REPRESENTED BY EDMUND HONOHAN S.C. INSTRUCTED BY GAYNOR & COMPANY SOLICITORS)
Chairman: Ms Owens
Employer Member: Mr Keogh
Worker Member: Ms Ni Mhurchu
1. Time Limit
2. The Labour Court received the complaint of Mr. MacFhionnbhairr under Section 19 of the Employment Equality Act, 1977 ('the 1977 Act') on 9th August, 1996.
The date on which the alleged discriminatory act took place was given as "from May 1993 to date".
The party alleged to have discriminated against him is the Department of Foreign Affairs.
Section 19(5) of the 1977 Act provides: "Save only where reasonable cause can be shown, a reference under this section shall be lodged not later than six months from the date of the first occurrence of the act alleged to constitute the discrimination".
The Court decided to hear the parties to the dispute for the purposes of considering whether or not there was "reasonable cause" for the delay in making the reference.
The said hearing took place on 8th January, 1996.
On behalf of the complainant it was argued that the High Court had declined jurisdiction in an action seeking damages for discrimination, and had directed that the provisions of Section 19 be operated. While it was submitted that the complainant did not need to explain his non-referral within the six month time limit, it was stated that he had in fact been taking his High Court proceedings; since the employer (the Department of Foreign Affairs) was well aware of those proceedings, it cannot have been at all prejudiced by the delay. It was further submitted that the commencement of High Court proceedings stopped time running against the complainant in relation to his referral of the dispute under the 1977 Act.
The employer has argued that at all material times the complainant was aware of the nature and effect of the alleged discriminatory acts, and was not prevented from bringing any claim he saw fit in respect of them. Furthermore, the complainant had the benefit of legal advice and was aware of the provisions of the 1977 Act. The Court was urged to interpret strictly the limitation period in Section 19(5). It was argued that "reasonable" must be objectively determined, and that the complainant's High Court proceedings alone could not constitute "reasonable cause", since they did not prevent him from lodging a reference under the 1977 Act. Finally, the employer argued that the substance of the complainant's claims had already been heard and determined by the High Court, and that a hearing by the Labour Court of the complainant would be prejudicial to the employer in terms of time, cost, expense and inconvenience.
The Court notes that the Statement of Claim in the complainant's High Court proceedings (1993 No. 762OP) makes no reference to the Act of 1977 or to discrimination on the grounds of sex or marital status. It would appear that the complaint of discrimination was first made on 16th May, 1996 during the hearing of the complainant's High Court proceedings. These proceedings had been issued in 1993; the Statement of Claim was served on 13th January, 1994.
The Court further notes that the High Court declined jurisdiction under the Act of 1977 on the basis that the allegation of discrimination should be dealt with in the first instance under the machinery provided in the 1977 Act. But the High Court did not give any direction that the machinery of the 1977 Act should come into operation; the High Court simply pointed out that the machinery was there, and declined itself to apply the provisions of the 1977 Act.
The complaint, having now come to the Labour Court under the 1977 Act, this Court is constrained to operate its jurisdiction within the parameters of Section 19(5).
It is clear that the first occurrence of the discrimination to which the complainant objects occurred more than six months before his reference. It is then a matter for this Court to decide whether the complainant has shown 'reasonable' cause for the delay in making a complaint under the 1977 Act so as to enable the dispute to proceed to investigation, the delay notwithstanding.
The Court does not find reasonable cause for the delay in this instance. It is clear to the Court that it had not occurred to the complainant to bring a case to the Labour Court under the 1977 Act at any time before 1996. It was an option that only occurred to him and his advisors when the High Court refused to apply the provisions of the 1977 Act to his claim in respect of the denial of certain allowances. The complainant believed he had been treated unfairly since 1993, but he chose to frame his claim as a breach of his contract of employment, rather than as a claim of discrimination. In fact he could, at the outset, have pursued both his High Court case and a claim of discrimination under the 1977 Act. He did not do so. The complainant is only now seeking to use an avenue of redress which, although open to him from the beginning, was not pursued by him until the High Court declined to apply the provisions of the 1977 Act to his proceedings.
The Court therefore does not find reasonable cause for the delay.
Signed on behalf of the Labour Court
3rd February, 1997______________________
Enquiries concerning this Decision should be addressed to Tom O'Dea, Court Secretary.