A Named Female - CBF (complainant) Represented by SIPTU vs A Named Company - PCL (respondent) Represented by a named firm of Solicitors: Equality Officer Decision DEC-E 2003/047 (Coyle G.) 30th October, 2003
1.1 This dispute concerns a claim by a named female complainant that a named respondent discriminated against her in terms of Sections 6(1), 6(2)(b), 6(2)(c), 6(2)(d) and 6(2)(e) of the Employment Equality Act, 1998 and in contravention of Section 8 of that Act when she was subjected to adverse comment on her marital and family status, religion and sexual orientation. The complainant also alleges that she was victimised in terms of Section 74(2) of the 1998 Act.
2.1 The complainant commenced employment with the respondent organisation in January, 2000 as a Mediator/Co-ordinator to the unemployed. It is the complainant's contention that she was subjected to discriminatory treatment on the grounds of marital status, family status, religion and sexual orientation culminating in the respondent's decision to withdraw the appointment of an Employer Liaison/Research Officer who was to assist her in her work. In terms of victimisation the complainant alleges that, on her resignation, she was not paid holiday leave to which she was entitled. The respondent has denied the allegations.
2.2 Consequently the complainant referred a complaint of discriminatory treatment and victimisation to the Director of Equality Investigations on 24th October, 2001 under the Employment Equality Act, 1998. She referred a further complaint of victimisation on 29th November, 2001. In accordance with her powers under Section 75 of that Act the Director then delegated the case to Gerardine Coyle, Equality Officer on 14th January, 2002 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. Subsequent to this the complaints were referred to mediation with the agreement of the parties and the Director. The complaints were not resolved at mediation and the complainant's representative applied by letter dated 18th December, 2002 for the resumption of the hearing of the claims through investigation. This notification was passed to me on 20th December, 2002. Submissions were received from both parties to the claims and a joint hearing took place on 18th September, 2003. Additional information was received from the respondent on 30th September, 2003.
3. SUMMARY OF THE COMPLAINANT'S SUBMISSION
3.1 The complainant commenced employment with the respondent organisation on 10th January, 2000 and she was given a contract of employment on 17th January, 2000. According to the complainant she was employed as a Mediator and Acting Co-ordinator working with the long-term unemployed and seeking employment opportunities for same on a one-to-one basis. Her work involved liaising with employers and it is her contention that the position required another person given that it was difficult, if not impossible, to do both jobs i.e. look after the unemployed person and also the perspective employer of this unemployed person. The complainant says that this was recognised and as she expanded the role a decision was taken to appoint an Employer Liaison/Research Officer.
3.2 According to the complainant every time she raised the issue of the appointment of the Employer Liaison/Research Officer she felt further and further alienated. The complainant states that it was proving impossible to do both jobs yet when she raised the appointment of an assistant she made little or no progress. On 9th February, 2001 a shortlist of 10 people for the post was set up. On 13th and 16th February, 2001 and on the 10th April, 2001 the complainant spoke to the Acting Manager about the appointment and finally on 10th May, 2001 she was told that an Employer Liaison/ Research Officer would not be appointed and she would have to continue doing the job herself. The complainant says that the Assistant Manager suggested to her that she do the work herself one day a week in order to keep certain people off her back. According to the complainant this was the last straw and the very first alternative job opportunity she got she took.
3.3 In her submission the complainant set out a number of alleged incidents which happened throughout the course of her employment. Having regard to these incidents it is the complainant's contention that she was discriminated against by the respondent in relation to her marital status, family status, religion and sexual orientation.
4. SUMMARY OF THE RESPONDENT'S SUBMISSION
4.1 According to the respondent the complainant joined the respondent organisation on 10th January, 2000 and was employed as a Mediator/Co-Ordinator to the Unemployed. She was initially placed on a four month contract for employment from 1st January, 2000 to 30th April, 2000. The four month period was probationary during which time the respondent organisation reserved the right to terminate the contract at any time. In December, 2000 it was recommended by the Board that contracts of employment for a period of three years should be offered to staff members and this recommendation was accepted by the Board in January, 2001. The respondent states that the complainant signed a contract dated 12th January, 2001 for the period from 1st January, 2001 to 31st December, 2003. According to the respondent this contract provided that should an employee have any grievance in relation to any aspect of their employment that employee should raise the matter with the Manager. The respondent says that each employee was given a grievance procedure handout with the Contract of Employment. It is the respondent's submission that the complainant did not avail of these grievance procedures and no issues or grievances were ever brought to the attention of the Manager/Assistant Manager of the respondent organisation between the period May, 2000 and January, 2001.
4.2 The respondent, in its submission, has denied the allegations and denies that there was any malicious or discriminatory intent at any time towards the complainant.
4.3 As regards the non-filling of the Employer Liaison/Research Officer post the respondent denies that the decision not to employ an Employer Liaison/Research Officer was taken in order to discriminate against the complainant. The decision to employ an Employer Liaison/Research Officer was a management one. The respondent says that although this position was advertised no interviews were held as it became evident to management that there was not a sufficient caseload developed to warrant an extra half post to the employer liaison section. It is the respondent's contention that the management decision had nothing to do with the complainant personally.
4.4 The respondent states that none of the allegations made by the complainant in her submission were ever brought to the attention of the Manager of the respondent organisation and the respondent asserts that had the complainant wished to bring these matters to the attention of the Manager she had ample opportunity to do so. The respondent notes that the Chairperson of the respondent organisation held a series of meetings with all staff during the period from February to March, 2001 to discuss their work and establish if there were any issues which prohibited performance. During the course of these meetings the respondent submits that the complainant had ample opportunity to discuss the alleged discrimination of which she now complains, but she failed to do so. The respondent states that it was never given an opportunity by the complainant to respond to the allegations which she claims led to her leaving the organisation. According to the respondent the complainant resigned voluntarily and without complaint by letter dated 29th May, 2001. She did not give the requisite four weeks notice as provided in her contract of employment but was allowed to leave in order to facilitate her taking up her new position. The respondent notes that the complainant acknowledged the help of the respondent organisation in allowing her to leave without the requisite notice.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 In making my decision in this claim I have taken into account all of the submissions, both oral and written, made to me by the parties. At the hearing of this claim the complainant stated that her claim of victimisation had been settled to her satisfaction before a Rights Commissioner and as a result she wished to withdraw this aspect of her complaint. She confirmed this in writing by letter dated 7th October, 2003.
5.2 The first issue for consideration in this claim is the validity of the claim in terms of the six months time limit as set out in Section 77(5) of the Employment Equality Act, 1998. Section 77(5) of the Act states:
".... 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 the occurrence or, as the case may require, the most recent occurrence of the act of discrimination or
victimisation to which the case relates".
On her referral form the complainant stated that the date of the most recent occurrence of discriminatory act was 26th April, 2001. In a request for information from the complainant to the respondent she stated that:
"In the last week of April, 2001 the Assistant Manager informed me that the [respondent] were not going to fill the position of Employer Liaison/Research Officer ...... This was the final act in a long saga of discrimination against me ......"
In her submission the complainant did not make any reference to an act of alleged discrimination having occurred on 26th April, 2001. However it is clear from her submission that when the Assistant Manager told her of the decision not to appoint an Employer Liaison/Research Officer (which she says was 10th May, 2001) he suggested, at the same time, that she devote one day per week to liaising with employers. At the hearing of this claim the complainant said that the decision not to appoint the Employer Liaison/Research Officer was made at a board meeting on 26th April, 2001 and that she was informed of this decision by the Assistant Manager (who was acting Manager at that time for the Manager who was out sick) on 10th May, 2001 when he suggested to her that she devote one day per week to liaising with employers.
5.3 According to the respondent there were no board meetings in February and March, 2001 because of the foot and mouth disease. As a result informal meetings took place between the acting Manager and the Chairman and the respondent states that it was at one of these meetings that the decision was taken not to proceed with the appointment of the Employer Liaison/Research Officer and that this decision was approved at the board meeting on 26th April, 2001. According to the respondent the acting Manager informed the complainant of the decision not to appoint the Employer Liaison/Research Officer at a meeting with her on 10th April, 2001. In this regard the person who was acting manager produced his diary in which he had recorded meetings with the complainant as follows:
2.00p.m. on 10th April, 2001 regarding Work Plan
9.00a.m. on 10th May, 2001 regarding Work Review
The respondent says that the acting manager suggested to the complainant at the meeting on 10th April, 2001 that she devote one day per week to liaising with employers and that the purpose of the meeting on 10th May, 2001 was to review how this was going for the complainant. The respondent submitted minutes of a sub-committee meeting on 24th April, 2001 attended by the complainant, the acting manager and two other members of staff. In a section of these minutes entitled "Work Report April, 2001" the complainant states as follows:
"I have focused on work with employers more recently. ...... Having met with [the Assistant Manager], we agreed that I work specifically with employer's one day per week ....."
According to the respondent this proves that the complainant was aware of the decision not to appoint an Employer Liaison/Research Officer before 26th April, 2001.
5.4 I am satisfied from the above evidence that the complainant was aware of the decision not to appoint an Employer Liaison/Research Officer prior to the Board meeting on 26th April, 2001 and the sub-committee meeting on 24th April, 2001. There is strong evidence to support the respondent's contention that the complainant was informed of the decision not to appoint the Employer Liaison/Research Officer on 10th April, 2001. For a claim to be made within the six months time limit as set out in Section 77(5) of the Employment Equality Act, 1998 the complainant should have referred her complaint to the Director of Equality Investigations by 9th October, 2001. As the claim was referred on 24th October, 2001 it is outside the six months time limit specified in the Act and the complainant did not seek an extension of time by arguing that exceptional circumstances prevented her referring her claim within the six months time limit in terms of Section 77(6) of the 1998 Act. Consequently I do not have jurisdiction to investigate this claim.
5.5 In relation to all of the allegations made by the complainant I note that, at no time, did she report them to her manager or to any member of the Board of the respondent organisation. On 3rd January, 2001 the complainant through her Union wrote to the manager of the respondent organisation alleging serious breaches of equality legislation but giving no precise detail. The manager of the respondent organisation was out of work on sick leave from early in the year to September, 2001. I note that the letter of complaint was acknowledged and a request made for greater detail of the allegations. The Union requested a meeting to set out the issues, as opposed to putting them in writing, but this meeting never took place. Given the seriousness of the allegations the respondent should have a mechanism in place to address issues of his nature in the absence of the manager.
5.6 At the hearing of this claim the respondent submitted a copy of its grievance procedure and stated that all new members of staff were given a copy of it after commencing employment. The complainant denied having received a copy of this procedure. I recommend that the respondent requests all new staff to sign an undertaking that they have received a copy of the grievance procedure and this undertaking should be retained for production in the event of a dispute. From the grievance procedure I note that, in the event of a problem, the staff member should make a complaint to the manager. I recommend that provision be made in the grievance procedure that where the complaint involves the manager the staff member can approach either the Chairman or any other member of the Board of the organisation.
6. I find that this claim which has been referred by a named female complainant against a named respondent is outside the time limit specified in Section 77(5) of the Employment Equality Act, 1998 and as a result I have no jurisdiction to investigate it.
30th October, 2003