SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
HEALTH SERVICE EXECUTIVE NORTH WEST
(REPRESENTED BY HEGARTY AND ARMSTRONG & SOLICITORS)
- AND -
PATRICIA CULLEN KILLORAN
(REPRESENTED BY JOHN GERARD CULLEN SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr McCarthy
1. Appeal of Adjudication Officer's Decision.
2. The Claimant 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 22nd June, 2017. The following is the Determination of the Court on an application made by the Respondent under Section 77A of the Acts:
This is an appeal by Ms Patricia Cullen Killoran (the Complainant) against the decision of an Equality Officer /Adjudication Officer under the Employment Equality Acts 1998 – 2011. The Complainant alleged that she had been discriminated against and harassed on the grounds of her disability and family status by her employer the HSE (the Respondent). Furthermore, she claimed that she had been victimised by the Respondent.
By decision dated 30 August 2016 and bearing reference no DEC-E2016-123, the Equality Officer /Adjudication Officer held that the Complainant had failed to establish aprima faciecase of discriminatory treatment, harassment and victimisation on the disability ground. He found that the Complainant was not a person with a disability at the relevant period.
The Complainant referred her claims under the Acts to the WRC on 3rdDecember 2012.
At the first hearing before theEquality Officer /Adjudication Officer on 13thOctober 2015, the elements of the complaints relating to family status were formally withdrawn by the Complainant’s Legal Representative.
Application by the Respondent
The Court held a hearing on 22ndJune 2017 to consider the preliminary matter of whether or not the Complainant had a disability at the relevant time within the definition of Section 2 (1) of the Employment Equality Acts 1998 – 2011. At the hearing, Mr Brian Armstrong, Hegarty & Armstrong Solicitors, on behalf of the Respondent made an application to the Court that the Complainant’s claim should be dismissed under Section 77A of the Acts for two reasons, (i) the claim is misconceived and (ii) the claim relates to a trivial matter.
The Respondent was requested by the Court to forward a submission on the application. The Respondent’s submission was received by the Court on 3rdJuly 2017. The Complainant was given an opportunity to respond to the applicant’s submission. Mr Gerard Cullen, John Gerard Cullen Solicitors, on behalf of the Complainant submitted a response by email on 20thJuly 2017.
Section 77 A of the Acts provides:-
- (1) The Director General of the Workplace Relations Commissionmay dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.
(2) (a) Not later than 42 days after the Director General of the Workplace Relations Commissiondismisses a claim under this section, the complainant may appeal against the decision to the Labour Court on notice to theDirector General of the Workplace Relations Commissionspecifying the grounds of the appeal.
(b)On the appeal the Labour Court may affirm or quash the decision.
The Court has considered the submissions made by both parties. Mr Armstrong submitted that given that the Court has an appellate jurisdiction in respect of the decision of the Director in this regard, he contended that the Court must have the jurisdiction to exercise this power itself. The Court cannot accept that contention.
It is clear from paragraph (b) of subsection (2) of Section77A that the Court’s jurisdiction in an appeal against a decision given pursuant to Section 77A of the Acts is confined to affirming or quashing a decision of the Director General of the Workplace Relations Commission (or an Adjudication Officer if so assigned by the Director General) that claims were made in bad faith, frivolous, vexatious, misconceived in law or relate to a trivial matter.
It seems clear to the Court that had the Oireachtas intended to provide such a power to the Court at first instance it could have easily done so in express terms. However, if such were the case, it would operate so as to deprive the Complainant of an avenue of appeal.
No such decision under Section 77A has been made in this case, therefore having regard to statutory provisions, the Court does not have the jurisdiction to accede to the application made.
On the basis set out above the Respondent’s application to dismiss the case under Section 77A of the Acts fails. The Court will proceed with the appeal of the DEC-E2016-123.
The Court so Determines.
Signed on behalf of the Labour Court
28th July 2017______________________
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.