FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011 PARTIES : BUSINESS MOBILE SECURITY SERVICES LTD T/A SENECA LTD (REPRESENTED BY ARTHUR COX) - AND - JOHN MC EVOY (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Decision No.DEC-E2015-149.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 83(1) of the Employment Equality Acts, 1998 to 2011. A Labour Court hearing took place on 26th April, 2016. A further hearing took place on 23rd May 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr John McEvoy (the Complainant) against a decision of the Adjudication/Equality Officer ref DEC-E2015-149 in which he decided that Business Mobile Services Ltd (the Respondent) had not discriminated against him on the grounds of disability contrary to the provisions of theEmployment Equality Acts (the Act). The Adjudication/Equality Officer set out his decision in the following terms:
- I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
• There is, in the circumstances outlined above of a speedy referral by the Complainant of a matter to the internal processes, and unacceptable delay in bringing them to a conclusion, and in view of the thrust and direction of judicial, and public policy support for amicable dispute resolution grounds for ‘reasonable cause’ to extend the time limits.
• However, I find that there was no discriminatory treatment or withdrawal of ‘reasonable accommodation’ in breach of the act and I dismiss the claims.
- I have investigated the above complaints and make the following decisions in accordance with section 79 of the Acts that:
The Respondent is a security company providing a range of services to the business community. The Complainant was originally employed in that capacity by CP Omada . The Complainant had suffered from a disability and had concluded an accommodation arrangement with that company in 2007. That accommodation agreement enabled him to remain in the workforce.
The Respondent subsequently took over the business of CP Omada and became the Complainant’s employer. He contends that, following the takeover, the Respondent resiled from the agreement and progressively altered the terms of the accommodation arrangement making it difficult for him to remain at work.
The Complainant filed a formal complaint with the Respondent which was the subject of a protracted internal review through the company grievance machinery between September 2012 and May 2013 which failed to resolve the matter. When the outcome of the process was communicated to him on May 31st he submitted a claim to the Tribunal on June 14th asserting that the most recent date of discrimination was May 31st 2013.
The Respondent objects to the hearing of the complaint on the grounds that it is statute barred. It submits that as the complaint under the Act must be commenced within six months of the date of the last or most recent act of discrimination against the Complainant. It submits that no such act took place in the six months prior to the 14thJune 2013. It submits that as a consequence the complaint is statute barred and the Court cannot proceed to hear the substantive matter.
The Complainant submits that the complaint is not statute barred. It submits that the Complainant raised the matter through the internal grievance procedure and was awaiting the outcome of that process before commencing proceedings under the Act. It submits that the Respondent’s decision at the end of that procedure to reject his complaint amounts to the final act of discrimination against him and that he is entitled to rely on that act of discrimination to bring the instant proceedings. He further submits that public policy supports the attempted resolution of disputes through direct discussion between employers and employees and that where procedures are in place to facilitate this they should be exhausted before a complaint is referred to an external body under the Act.
Section 77(5)(a) of the Act states
- (5) (a) Subject toparagraph (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
The Complainant states that it occurred in August 2012 and was repeated in May 2013 through the refusal of the Respondent to rectify it through the grievance procedure.
The Respondent states that it occurred at the latest in August 2012 and that time runs from that date. It submits that no further acts of discrimination occurred thereafter and the Complainant cannot circumvent the time limits set out in the Act by seeking to rely on an internal procedure that did not prevent him from bringing his complaint within the statutory time limit. It submits that the delay in doing so was a choice he made and that he must take the consequences of exercising that choice in the manner in which he did.
The Court has examined the facts of the case as outlined in the submissions of both parties. The Court finds that the last act of discrimination occurred no later than August 2013. Thereafter the Complainant had a choice to make as to whether he would pursue the matter through the statutory remedies available to him or would avail of an internal grievance procedure in an effort to secure a resolution. He chose the latter.
There was a delay in processing the grievance which lasted for more than six months. In the meantime the Complainant was out of work on sick leave. Again he decided to allow that procedure take its course while time was running under the Act. When the matter was eventually brought to a conclusion under the grievance procedure the time limit for bringing a complaint under the Act had expired.
The Complainant seeks to describe the decision not to uphold his grievance as a further act of discrimination. The Respondent rejects that proposition.
The Court has considered the matter and has decided that, in this case, the decision by the Respondent not to uphold the grievance cannot amount to an act of discrimination under the Act.
The Court gives considerable weight to the Complainant’s letter of 12 September 2012 in which he commences his grievance. In that he makes reference to the Respondent’s duties to him under the Health and Safety at Work Act 2005, the Equality Act, 2004 and the Private Security Services Act 2004. The Respondent considered those representations and replied to them by letter dated 22 March 2013 in which it outlined the reasons for the decisions it had taken. At that time the Complainant was out of work on sick leave and had been so since August 2012. The Complainant appealed against those decisions and a meeting took place on 8 May 2013 that was attended by the Managing Director of the Respondent company, the Complainant and his representative. The outcome of that meeting was notified to the Complainant by letter dated 31 May 2013.
The Court finds that the issues that arose in the course of those meetings were in the nature of industrial relations grievances that contained no indication that a complaint under the Act was either imminent or in contemplation. They amounted to an alternative way of resolving the issues in dispute and did not form part of a procedure that acted as a prelude to commencing a complaint under the Act. Instead the Complainant decided to forego the option of proceeding under the Act and instead chose to try to settle the matters in dispute through other means. When that did not work out to his satisfaction he then sought to rely on his choice to justify the delay in bring proceedings under the Act.
The Court finds that in the particular circumstances of this case the Complainant made a choice and must take the consequences of that choice. He chose not to pursue a complaint under the Act, allowed time to pass and found himself statute barred when his chosen procedure did not resolve the matter to his satisfaction.
The Court finds that such a decision cannot justify the delay in bringing proceedings under the Act and accordingly determines that the complaint is statute barred.
The Complainant, in the alternative sought an extension of time. He relies on the same arguments as set out above and in addition submits that he meets the tests set out by the Court in the settled case law. In particular he submits that he has explained reason for the delay and submits that it was commensurate with the duration of the grievance procedure. He submits that he acted immediately after the outcome of the process was available to him.
The Respondent submits that the Complainant is effectively seeking to second guess his decision not to proceed through the statutory procedures available to him and that his delay no more justifies an extension of time that it did the delay itself.
For the reasons set out above the Court finds that the Complainant opted not to present a complaint under the Act and belatedly changed his mind when his chosen alternative course of action did not avail him. The Court finds, in the circumstances of this case, that the Complainant has not set out reasons such that would justify the delay in bringing proceedings under the Act. Accordingly the Court rejects the application to extend time.
Determination
The complaint is statute barred. The appeal is not allowed. The Court further determines that no good grounds for extending time have been advanced by the Complainant and accordingly rejects this application also.
The appeal is not allowed. The decision of the Adjudication/Equality Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
28 July 2016______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.