ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008534
A Public Sector Recruitment Agency
Jennifer Murray Office of the Chief State Solicitor
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998
Date of Adjudication Hearing: 09/10/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 79 of the Employment Equality Acts, 1998 - 2015,] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant applied for the position of SP to the respondent on the 30th.April 2015.
He submitted that the respondent discriminated against him on the grounds of disability and submitted his complaint against the respondent to the WRC on the 10th./26th.May 2017.
As part of the recruitment process the claimant was obliged to complete an online psychometric test in June 2015 and was advised on the 6th.July2015 that he was unsuccessful in the test. In ensuing exchanges with staff of the respondent the claimant was informed on the 12th.August 2015 that a candidate could resit the test for example on the death of a close relative – he applied to resit the test on the 19th.Aug.2015 as he had been ill at the time of the initial test. Medical certs were sought by the respondent on the 25th.Aug. 2015 and he sought clarification on the appeal process on the 14th.Sept. 2015 and on the 16th.Sept. 2015 the respondent refused the application to resit on the 17th.Sept. 2015 on the basis of the absence of medical information and time constraints. The claimant appealed this decision on the 28th.Sept. 2015 but the appeal was not upheld. He then appealed this outcome to the named appellant body- hereafter referred to as APB – this appeal was rejected in draft form according to the claimant .
The claimant submitted that he had been discriminated against by APB on the grounds of his disability and on the grounds that he was not provided with reasonable accommodation to allow him participate in the process.
It was submitted that the conduct of the appeal was contrary to natural justice , it misrepresented his engagement or lack thereof with the respondent , ignored the absence of specific procedures and penalised the claimant citing non conformation with procedures unknown to him at the time of the decision. It was further submitted that APB considered matters that were not pertinent to the appeal and the appellant body did not examine the respondent’s reasons for denying the application to resit the test.
In considering the appeal ,APB consulted with a senior psychologist in the employment of the respondent and the claimant was afforded no opportunity to challenge his evidence.
The claimant sought an opportunity to “engage directly and personally in the process similar to the other parties “ but was denied same.
It was contended that the claimant acted expeditiously on hearing of the possibility of resitting the test and that it was unfair of APB to discriminate against him on the grounds of delay.
It was contended that all candidates called for interview are obliged to resit the psychometric tests .It was submitted that the interviews relevant to the claimant were scheduled for the 25th.Sept. 2015 and that the claimant could easily have been accommodated in that time frame. It was advanced that the claimant had never been advised by the respondent of the timelines pertaining to the recruitment campaign and it was submitted that APB had refused to comply with the claimant’s request for further information under Section 76 of the Act. The APB did not give reasons for their rejection of the appeal. The claimant submitted that other candidates known to him were allowed resit the test because of illness.
The claimant sought a finding that APB be found to have discriminated against the claimant by not providing him with reasonable accommodation; that APB be required to revise procedures to enable candidates to be fully informed of time frames and appeals on the grounds of exceptional circumstances ; a recommendation that all appeals are dealt with by persons who have no connection with the decision making body ; a recommendation that candidates are given adequate notice of time frames within which the recruitment process will operate and an apology from APB for their discriminatory treatment.
In the claimant’s post hearing submission the claimant sought to have the hearing reconvened to deal with the substantive matter and refuted in the strongest possible terms that the complaint was in any way vexatious. He contended that the reliance by the respondent on time as an impediment was a red herring and that in any event any delay rested with the respondent and its agents.
It was submitted that the claimant appealed Ms.F’s decision to the respondent on the 6th.Nov. 2015 and the respondent forwarded the matter to APB to be dealt with – the decision was subcontracted to APB for determination as provided for in the rules of the competition. The claimant submitted that when he was advised of the APB decision on the 19.12.16 he was never advised that the only option open to him was a judicial review and advanced that other bodies such as An Bord Pleanala provide such advice to the parties.
He argued that if the decision of Ms.F is the appropriate date from which time is measured “ how can it be right, proper or fair for the respondent to mislead candidates into appealing to APB .It was contended that based on the respondent’s own documentation a reasonable person could only conclude that the APB appeal is an inherrent part of the process set up by the respondent and had the claimant made his complaint to the WRC on foot of Ms.F’s decision , it may not have been heard as the appeals process remained incomplete. The claimant relied upon the respondent’s failure to engage with him as reasonable cause for the delay in making the complaint. Reference was made to the tests referred to in EDA 1713 Servir Ireland Ltd. v Juanito Wilson by the Labour Court “ the actions of the complainant make sense , are agreeable to reason and are not irrational or absurd”.
The claimant set out the timeline of correspondence exchanged between the parties from the appeal of Ms.F’s decision on the 6.11.15 to the issuing of the APB decision on the 19.12.16 to explain the claimant’s application for an extension of time. The claimant stated that he inadvertently took the view that” the June meeting of the commission was a relevant date but it is clear from the sequence of correspondence …that this is not the case and the December date is relevant in the context of ‘time’ in processing this complaint”.The claimant argued that he endeavoured to speed up the process by sending reminders which ultimately had some effect.
The claimant submitted that the conduct of the competition is a function of the respondent – however in conducting the competition the respondent included the APB as being part of the process and forwarded the appeal for determination.
The complaint was lodged within 6 months of the claimant being given formal notification of the decision.
The claimant is not seeking a reversal of Ms.F’s decision as it is of no consequence to resit the test at this point. He is relying on the WRC to “ adjudicate on the stated questions on fair and transparent process and procedures in dealing with discrimination”.
Summary of Respondent’s Case:
The respondent submitted that the complaint was out of time and contended that the matter of jurisdiction should first be decided upon in advance of any consideration of the substantive matter.
It was submitted that the claimant’s assertion that the date of the discriminatory act of the 19th.Dec. 2016 flew in the face of earlier correspondence from him.
It was submitted that his WRC complaint against the appellant body (APB) was lodged in July 2016 - the determination issued on the 5th.April 2017 – finding that the appellant body was not the appropriate body and the appropriate party was the within respondent .In the claimant’s application for an extension of time dated the 9th.May 2017 , he referred to “ the internal process of my complaint was only finalised in or after the 29.06.16 …….the latest date therefore to which discrimination occurred was in or after the 29.06.16”.In the within complaint the claimant submitted by the claimant in May 2017 , the claimant dates the most recent date of discrimination as 29.06.16 on or after.The respondent advised the WRC on the 8th.June 2017 that the complaint was out of time and in response the claimant sought to argue that the latest date of the alleged discrimination was the 19th.Dec. 2016 on his “ being informed of the final decision in relation to my complaint on 19.12.16”.
It was submitted that the complaint at issue was lodged on the 10.05.17 and updated on the 24.05.17 and it was submitted as being in time as “ I was only given notice of the final decision on the 19th.12.16………the relevant date to calculate the appropriate period is 19.12.16 the date on which I was given notice of the final decision on my internal appeal”. In his letter to the WRC of the 25th.Sept.2017, the claimant claims he only became aware of the APB decision on the 19th.Dec. 2016.
It was asserted that the claimant initially argued that the latest date of occurrence of discrimination was the 29th.June 2016.When he was advised that the correct respondent was the within respondent he sought to extend “ those proceedings by letter dated the 9th.May 2017 arguing that the internal process was only finalised on the 29th.June 2016 – the date on which APB met and took their decision” .The chronology of further correspondence was outlined – it was submitted that per the claimant’s own documentation the last occurrence was the 29th.June 2016 – in contrast with his letter of the 27.09.17 to the WRC where he alleges he was only made aware of the approval of the minutes rejecting his appeal on the 19th.Dec. 2016.
It was submitted that Section 77(7)(b) provides that claims for redress in respect of local appointments “ shall in the first instance refer the claim for redress to the Commissioners concerned”.It was submitted that the decision of Ms.F was notified to the claimant on the 27th.Oct. 2015 and that the 6 months statutory period runs therefrom. The claimant initially argued the relevant date as the 29.06.16 on which date APB made its decision and subsequently argued that the relevant date was the 19.12.16 when he was informed that the minutes of the APB meeting of June 2016 were approved.
It was submitted that there was nothing in the email to the claimant of the 13.07.16 to say the decision of APB was an interim one only and it was clear that a definitive decision had been taken. The ensuing exchanges between the claimant and APB were presented. While the claimant was informed of the approval of the minutes of the decision of the 29.06.16 on the 19.12.16 it was submitted that this was not the date of the decision .It was contended that the date of the decision was the 29.06.16 and communicated by email on the 13.07.16.It was submitted that the minutes relate only to the recording of the decision as opposed to the actual taking of the decision. It was highlighted that the claimant lodged his complaint against APB to the WRC prior to the 19th.Dec. 2016.The claimant was advised of the appeal process by Ms.F on the 27th.10.2015.An extract from the Code of Practise Appointment to Positions in the Civil and Public Service was invoked and it was contended that arising from the provisions contained therein the claimant was aware that APB could not reverse the decision of Ms.F. and that consequently he should have made his complaint within 6 months of the 27th.Oct.2015.If was dissatisfied with the decision of the Commission , he could have sought a judicial review. It was advanced that the claimant’s correspondence of the 9th.May 2017 to the WRC should be considered by the WRC “ as the subsequent change of tack by the Complainant to the Dec. 2016 date and has not been explained by him”.
In a post hearing submission , the respondent submitted “ it remains our position that the decision of Ms.F of the 27.10.15 is key in terms of when the statutory time period runs and pursuant to Sections 77(7) and (8) of the Employment Equality Act 1998(as amended).This Act provides that such a referral must be made before a complaint can be brought to the WRC”.
It was contended that the respondent was relying on 3 statutes , the Workplace Relations Act 2015 , the Employment Equality Act 1998and the Public Service Management Act (Recruitment and Appointments ) 2004.
It was submitted in the context of the Workplace Relations Act that the claimant’s correspondence to the WRC was contradictory and his contention of reasonable cause was queried. As far as the respondent was concerned that matter was out of time by at least 12 months.
It was submitted that in terms of the issue for consideration under the Employment Equality Act , the matter to be determined was the reference in Section 77(7) was “the Commissioners concerned”- and whether the reference is to the respondent or APB. Both these bodies were dissolved under the 2004 Act and replaced by the respondent – in certain circumstances. While the claimant argues the relevance of the APB decision , the respondent was adamant that the relevant decision was that taken by Ms.F.It was contended that the decision of the APB had no bearing as it cannot reverse the decision of Ms.F and under the Code of Practise the only way to challenge a decision of the APB is through a judicial review.
The respondent set out the amendments made to Section 77 of the Employment Equality Act 1998 by the Public Service Management (Recruitments and Appointments )Act 2004.It was submitted that arising from these amendments , the claimant in the first instance should have referred his complaint to the holder of the recruitment license , the respondent. It was submitted that it was clear that it is to the respondent a referral must be made before a complaint can be made to the WRC. The decision by Ms.F to refuse the application for a resit was notified to him on the 27.10.15.This was the date from which the 6 months must run and it was submitted that this was borne out by the legislation.” The wording of Section 41 (6) of the Workplace Relations Act 2015 , namely the word ‘shall’ , means that this provision is mandatory and that there is no discretion afforded in terms of compliance with this deadline. When this provision is read in conjunction with Section 77(7) of the 1998 Act as amended by the 2004 Act , it is this decision that is relevant and as submitted the notification to the claimant of this was the 27th.Oct. 2015”.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
I have reviewed the evidence presented at the hearing and in the post hearing submissions. I have considered the out of time arguments advanced by the respondent and the claimant’s defence of same and I find as follows.
The respondent and the appellant body – APB – are separate statutory bodies and most of the claimant’s submission is focused on the actions of APB as opposed to the respondent. I find that the alleged last act of discrimination was the last act of any party in the employment of the respondent which has to be the final decision of Ms.F dated the 27th.Oct. 2015.The APB took over the matter after this date.The claimant has conflated the 2 bodies , making the respondent responsible for the APB.The complaint against the within respondent was lodged and clarified on a number of dates in May 2017 , some 18 months after an alleged act of discrimination occurred .It is clear from the provisions of the amendments to the Employment Equality Act to take account of the Public Service Management (Recruitment and Appointments) Act 2004 that before submitting a complaint to the WRC , the claimant must first refer the complaint to the respondent , who in this case is the license holder.
In all of the circumstances I must conclude that the last alleged act of discrimination occurred on the 27th.Oct. 2015 – consequently , the complaint is out of time and I have no jurisdiction on the matter.
Dated: 26th April 2018
Workplace Relations Commission Adjudication Officer: Emer O'Shea