Ms Bridget Connolly
Health Service Executive
(represented by BCM Hanby Wallace, Solicitors)
The case concerns a claim by Ms Bridget Connolly that the Health Service Executive discriminated against her on the ground of age contrary to Section 6(2)(f) of the Employment Equality Acts 1998 to 2004, in permitting her harassment, in not facilitating her transfer requests, in withholding pay from her and in not issuing her with a P45 form and a reference when she left the employment of the respondent.
The complainant referred a complaint under the Employment Equality Acts 1998 to 2004 to the Director of the Equality Tribunal on 1 June 2006. On 19 March 2008, in accordance with her powers under S. 75 of the Acts, the Director delegated the case to me, Stephen Bonnlander, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. On this date my investigation commenced. As required by Section 79(1) and as part of my investigation, I proceeded to hold a joint hearing of the case on 22 October 2008. Various submissions and documents submitted in evidence were received from the complainant between 30 July 2006 and 14 February 2008. A submission was received from the respondent on 21 December 2007. Additional evidence was requested from the respondents at the hearing, and received on 31 October 2008.
Summary of the Complainant’s Written Submission
The complainant submits that on 16th January 2004, a male nurse in the hospital where she worked at the time called her a “neurotic old lady”. She subsequently went on sick leave, and when certified fit to return to work, she sought a transfer to another nursing facility, but that her request was not accommodated. She submits that a younger colleague was accommodated with her transfer request.
The complainant submits that she resigned in April 2005 and that she was no issued with her P45 form and did not receive holiday pay due to her. She submits that she and her union representative then engaged with the respondent directly on these matters until January 2006.
The complainant also submits that all events from her harassment in January 2004 until the end of her direct engagement with the respondent in January 2006 should be seen as manifestations of the same intention to discriminate against her, on the part of the respondent.
Summary of the Respondent’s Written Submission
The respondent submits that the complainant’s case is outside the statutory time limit set in S. 77(5) of the Acts and that the complainant never applied for an extension to the time limit pursuant to S. 77(5) of the Acts. The respondent further submits that the respondent had no need for a P45 form since she was in receipt of pension payments shortly after her resignation from the respondent’s employment.
Conclusions of the Equality Officer
The preliminary issue for decision for me in this case is whether the complainant has filed her complaint in time as set out in S. 77(5) of the Acts.
S. 77(5) of the Acts states that “a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of six months from the date of the occurrence of discrimination or victimisation to which the case relates, or, as the case may be, its most recent occurrence.
The complainant stated at the hearing that she resigned from the respondent’s employment in mid-March 2005, giving one month’s notice, and left the respondent’s employment in April 2005. Communications with the respondent regarding the issue of a P45 form continued until January 2006. The complainant lodged her complaint with the Tribunal on 30 June 2006, making all aspects of her case bar the issue of her P45 form evidently out of time. The timeliness of the referral of this aspect of her complaint was further explored at the hearing of the complaint.
The respondent stated that the reason the complainant was not issued with a P45 form was that the employment relationship was not severed, but rather transformed into an employer-pensioner relationship, and that therefore a P45 form could not be issued. The respondent was following guidelines from the Revenue Commissioners in this regard, which were also submitted and which clearly state: “If an employer has one registration number for both employees and pensioners, an employee who retires should not be treated as having left employment. A form P45 should not be completed. The pension should be included on the PAYE/PRSI record as though it represented continuation of pay, and deduction or refund of tax should continue in the normal way [emphasis added].
The respondent submitted that the complainant’s pensionable service was reckoned up to 21 April 2005, and that when her pension application was processed in September 2005, she received full back payments of her pension entitlements. The complainant confirmed this.
I am satisfied from the evidence before me that the respondent made a decision not to issue the complainant with a P45 form in April 2005, in compliance with the relevant Revenue guidelines, and that the ensuing engagement between the complainant and the respondent did not entail a revision of the decision on the part of the respondent at any time.
In so finding, I am following the Equality Tribunal decision DEC-E2002-037, A Complainant v a National Training and Development Institute. In that case, the complainant participated in a course run by the respondent, but difficulties emerged. In 1999, the respondent decided that the complainant’s particular disability rendered him unsuited to the course. The complainant initially accepted this decision, but subsequently became dissatisfied with it. In 2001, there was correspondence between the parties during which the respondent refused to re-admit him to the same course. The complainant then referred a complaint under the Employment Equality Act 1998, arguing that the 2001 letter constituted a fresh ‘date of discrimination’. The Equality Officer, however, accepted the respondent’s argument that its decision was made in 1999, and that the letter in 2001 ‘was a reiteration of the original decision and did not constitute a new decision’. I am satisfied that this reasoning also applies to the case on hand.
I therefore find that the complainant’s case in its entirety was referred outside the statutory time limit and that I have no jurisdiction to investigate.
Based on all of the foregoing, and pursuant to S. 79(6) of the Acts, I find that (i) I have no jurisdiction to investigate the complainant’s complaint of harassment, the complainant’s transfer requests and circumstances surrounding the complainant’s resignation on the ground that these were referred outside the time limits set down in S. 77(5) of the Acts.
6 November 2008