FULL RECOMMENDATION
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015 PARTIES : CISCO SYSTEMS INTERNETWORKING (IRELAND) LIMITED (REPRESENTED BY KATE O'TOOLE B.L. , INSTRUCTED BY LEWIS SILKIN LLP, SOLICITORS) - AND - OLUMIDE SMITH DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr Hall |
1. Appeal of Adjudication Officer's Decision No: DEC-E2016-026.
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 2015. A Labour Court hearing took place on 16 January 2018 and 27 February 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Olumide Smith (the Appellant) against the decision of an Adjudication Officer under the Employment Equality Acts 1998 – 2015 (the Acts). The Adjudication Officer held that the Appellant’s former Employer, Cisco Systems Internetworking (Ireland) Limited (the Respondent) had not discriminated against the Worker on the grounds of race in relation to pay. In addition, the Adjudication Officer decided that a range of other complaints of discrimination on the race ground had not been made within the time period specified in the Acts and were consequently out of time.
The Appellant’s complaints, according to the decision of the Adjudication Officer recording the matter, were presented to the Equality Tribunal on 28thNovember 2013 and the decision under appeal was issued on 18thFebruary 2016. The Adjudication Officer’s decision was subsequently appealed to the Labour Court on 4thMarch 2016.
The Appellant disputed the date of presentation of his complaint to the Workplace Commission as recorded in her decision by the Adjudication Officer. He submitted that his complaints were presented to the Workplace Relations Commission on 12thNovember 2013. The Respondent accepted that this, notwithstanding the date recorded by the Adjudication Officer, was correct.
The Court clarified that it was not open to the Court to correct a decision of an Adjudication Officer. The Respondent submitted that the Court could take the issue into account when considering an application for an extension of time made by the Appellant.
Clarification secured by the Court in the course of the hearing
During the course of the hearing it became clear to the Court that allegations as between the parties of surreptitious recordings of meetings were a feature of the parties’ beliefs as regards earlier meetings between them. While this aspect of the parties’ beliefs has no consequence for the Court in its consideration of the within appeal, the Court sought clarity as to whether either party were recording the hearing of the Court.
Both parties confirmed to the Court that they were not recording any aspect of the hearing of the Court. In those circumstances the Court made it clear that, not being aware of any such recording, and both parties having confirmed that no such recording was taking place, the Court was not and would not be agreeable to any such recording or transcript thereof, if such ever emerged, being used in any forum or context whatsoever. Both parties accepted the Court’s statement in this regard.
Preliminary Issue
The Appellant submitted that the Court should, in accordance with the Acts at Section 77(5), extend the time available to him to make a complaint under the Acts. He submitted that he had made strenuous efforts to gather documentation to support his complaint following his dismissal on 5thJuly 2013 and this process led to a delay in the making of his complaint to the Workplace Relations Commission. The Appellant submitted that the Court should consequently view any delay as having occurred for reasonable cause.
The Respondent submitted that the major proportion of the vast amount of documentation associated with this matter was supplied by the Appellant to the Respondent rather than vice versa. The Respondent submitted that in any event the Appellant was not constrained from making a complaint to the Workplace Relations Commission by the absence of items of documentation if such an absence existed. The Respondent submitted that the the Appellant had not shown that any delay in the making of a complaint to the Workplace Relations Commission was for reasonable cause.
The Court has given careful consideration to the submissions of the parties.
Section 77(5) of the Acts in relevant part provides as follows:
- (5) (a) Subject to paragraph (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.
(b) On application by a complainant the F118 Director General of the Workplace Relations Commission or Circuit Court, as the case may be, may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.
Section 77(5) (b) of the Acts essentially provides that where reasonable cause is shown for a delay in presenting a claim under the Act within the six-month time limit provided for at section 77(5)(a) that period may be extended to a period not exceeding 12 months.
In the within matter the Appellant has made a range of allegations dating back throughout the course of his employment which he submits constitute discrimination within the meaning of the Acts. The Appellant makes clear that a cognisable period for his complaint of six months dating from 28thNovember 2013, which would be limited to the period from 29thMay 2013 to 28thNovember 2013, would limit his capacity to make complaints as regards events occurring outside that timeframe. He submitted that the Court, in extending time for the making of his complaints, would in effect extend the cognisable period for a complaint made on 28thNovember 2013 and thus allow a range of events occurring prior to 29thMay 2013 to be considered by the Court in the within appeal.
In order for the Appellant to succeed in his application he must establish that his failure to make his complaints earlier than 28thNovember 2013 as regards events occurring before 29thMay 2013 was for reasonable cause.
The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination WTC0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: -
- It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.
The Appellant in the within matter submitted that the reason for the delay in referring his complaints under the Acts was the fact that he spent a considerable period of time seeking and securing documentation in order to support his complaint of discrimination.
The Court concludes that no great degree of documentation is required in order for the Appellant to have made a complaint to the Workplace Relations Commission as regards any event or occurrence which he believed to constitute discrimination. The Court cannot accept that a search for unspecified documentation of unspecified relevance to a complaint of alleged discrimination can constitute reasonable cause for a delay in making a complaint of alleged discrimination. Consequently, the Court makes no direction in accordance with the Acts at Section 77(5)(b).
The Court therefore determines that the cognisable period for the within complaint is 29thMay 2013 to 28thNovember 2013. The Court notes the disputation as regards the actual date of submission of a complaint to the Workplace Relations Commission. The Court however must take the date recorded in the decision under appeal as being the date considered by the Commission to be the date of their receipt of the Appellant’s complaint. The Court does not consider itself to be at liberty to alter the date recorded by the adjudication officer in her decision.
Approach of the Court
The Appellant has submitted to the Court that he was the subject of discriminatory treatment, was victimised and was discriminatorily dismissed on the race ground. He further submitted that he had been the subject of a series of discriminatory acts in the period from 2008 until the termination of his employment on 5thJuly 2013. He contended that the events prior to the cognisable period of his complaint, which is 29thMay 2013 to until 28thNovember 2013, should be viewed as a continuum of discriminatory events culminating in his dismissal on 5thJuly 2013. The Respondent submits that events outside of the cognisable period for the within complaint are out of time.
Section 77(5)(a) of the Acts provides: -
- (a) Subject to paragraph (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.
Section 77(6A) provides: -
- For the purposes of this section —
(a) discrimination or victimisation occurs—
(i) if the act constituting it extends over a period, at the end of the period,
The Court, inCork County VEC v Hurley (EDA24/2011), in considering a contention that events which occurred outside the cognisable period for the complaint made could be considered as part of a regime or continuum and thus within the jurisdiction of the Court. The Court in that case decided
- ‘that if these occurrences were found to be acts of victimisation the Court would hear evidence in relation to all of the occurrences relied upon. If, however these occurrences were found not to have involved victimisation the complaint relating to the earlier occurrences could not be entertained having regard to s.77(5) of the act as the most recent occurrences would have been outside the time limit.’
The Court therefore, consistent with its approach in Cork County VEC v Hurley (EDA 24/2011), must first consider whether an act or acts of discrimination occurred within the cognisable period for the within complaint before it can consider whether events outside of that period can be considered to be part of a continuum or regime of discrimination and within the jurisdiction of the Court. It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.
The Court in the within matter therefore decided to consider first the events submitted by the Appellant to have occurred between the dates of 29thMay 2013 and 28thNovember 2013.
Those events were contended by the Appellant to be
1. That he was discriminatorily dismissed by the Respondent on grounds of race having regard to Section 8 of the Acts.2. That he was victimised within the meaning of the Acts.
3. That he was discriminated against on the race ground in that the Respondent failed to promote him.
4. That he was discriminated against as regards his remuneration on grounds of his race. He identified three comparators of a different race for the purposes of advancing this complaint.
Summary of the Appellant’s position
The Appellant made complaints as regards discriminatory dismissal, victimisation, equal pay and equal treatment as follows.
Dismissal
The Appellant submitted that the process which led to his dismissal on 5thJuly 2013 was flawed insofar as the Respondent failed to afford him fair procedure, equality, human rights and natural justice. He set out a series of allegations associated with the conduct of the disciplinary process of the Respondent and he set out issues he had with certain personnel involved in the process.
He asserted that the failings in the Respondent’s processes were directly related to his race. He asserted that the Respondent’s behaviour throughout the process was unfavourable, disrespectful, disdainful, abusive and dismissive.
The Appellant placed great weight on the fact that the personnel carrying out the various processes which led to the decision to dismiss him were persons of a different race to him.
Victimisation
The Appellant submitted that the treatment of him by the Respondent in the period from 29thMay 2013 to 5thJuly 2013 was unfavourable, disrespectful, disdainful, abusive and dismissive and amounted to victimisation of him for having earlier complained of racism in the Respondent Company.
Promotion
The Appellant submitted that the Respondent failed to promote him at any stage in his employment and that this constituted discrimination on grounds of race. He submitted that the Respondent’s continuing failure to promote him in the period from 29thMay 2013 to 5thJuly 2013 constituted discrimination within the meaning of the act.
Equal Pay
The Appellant submitted that in comparison to three named individuals, Mr DL, Mr DM and Mr SL, he was not afforded equal remuneration contrary to the Act at Section 29. The Appellant submitted that the failure to afford him equal pay was related to his race.
Testimony on behalf of the Appellant
The Appellant gave evidence in accordance with his submission.
Summary position of the Respondent.
Dismissal
The Respondent submitted that the dismissal of the Appellant was for stated reasons and followed a clear disciplinary and appeal process in full accord with the written policies of the Respondent. The procedure was conducted by personnel selected by the Respondent for the purpose and who had no connection with the matters under consideration in the disciplinary procedure. The Respondent submitted that the Appellant had made no submission which related any alleged failings, which were denied, in the conduct of the disciplinary procedure to his race. The Respondent submitted that the complaint of the Appellant related to discrimination on grounds of race and submitted that no connection had been made by the Appellant between any perceived failings of the Respondent’s disciplinary procedure, which were denied, and the race of the Appellant.
Victimisation
The Respondent submitted that no victimisation of the Appellant had taken place at all during his employment. The Respondent submitted that no cogent submission had been made as regards any alleged act of victimisation during the cognisable period of the Appellant’s complaint from 29thMay 2013 to 5thJuly 2013. In those circumstances the Respondent submitted that the Appellant’s complaint of victimisation could not succeed.
Promotion
The Respondent submitted that no promotion process was engaged in by the Respondent in the period between 29thMay 2013 and 5thJuly 2013 and consequently no incidence of non-promotion of the Appellant took place in that period. In those circumstances the Respondent submitted that no complaint of discrimination in relation to promotion could be sustained by the Appellant in that period.
Equal Pay
The Respondent rejected the Appellant’s complaint alleging a failure by the Respondent to afford him equal remunerations with comparators of a different race to him. The Respondent submitted detail of the remuneration of the Appellant throughout his employment and also submitted details of the earnings of the three comparators chosen by the Appellant to ground his claim. The Respondent submitted that the Appellant’s remuneration exceeded that of each comparator at all material times. In those circumstances the Respondent submitted that no complaint of a breach of the Acts in relation to remuneration could reasonably be sustained.
Evidence on behalf of the Respondent
Testimony of Mr TC
Mr TC gave evidence to the effect that he had no involvement in any of the matters giving rise to the disciplinary procedures which ultimately resulted in the dismissal of the Appellant. He stated that he conducted the procedure in accordance with the written policy of the Respondent and ensured that the Appellant was given a full and adequate opportunity to state his position. He stated that he reached a decision to dismiss for stated reasons and that no taint of discrimination on grounds of race attached to the decision made in that regard.
The law
The Appellant contends that he has been discriminated against on grounds of his race. The Acts make unlawful discrimination as between persons on any of the protected grounds. The Acts at Section 6(1) and Section 6(2) in relevant part provide as follows:
- 6.— (1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances, discrimination shall be taken to occur where-
(a) a person is treated less favourably than another person is, has been, or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the “discriminatory grounds”)…….
(2) As between any 2 persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are
- (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
(b) that they are of different civil status (in this Act referred to as “the civil status ground”),
(c) that one has family status and the other does not (in this Act referred to as “the family status ground”),
(2) For the purposes of this Part, victimisation occurs where the dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to -
(a) a complaint of discrimination made by the employee to the employer…….
- (a) that one is a woman and the other is a man (in this Act referred to as “the gender ground”),
Section 29 of the Acts provides as follows:
Entitlement to equal remuneration.
- 29.— (1) It shall be a term of the contract under which C is employed that, subject to this Act, C shall at any time be entitled to the same rate of remuneration for the work which C is employed to do as D who, at that or any other relevant time, is employed to do like work by the same or an associated employer.
(2) For the purposes of subsection (1), in relation to a particular time, a relevant time is any time (on or after the commencement of this section) which falls during the 3 years which precede, or the 3 years which follow, the particular time.
(3) For the purposes of this Part, where D’s employer is an associated employer of C’s employer, C and D shall not be regarded as employed to do like work unless they both have the same or reasonably comparable terms and conditions of employment.
(4) Section 19(4) applies in relation to C and D as it applies in relation to A and B, with the modification that the reference in it to persons of a particular gender (being As or Bs) is a reference to persons (being Cs or Ds) who differ in a respect mentioned in any paragraph of section 28(1) and with any other necessary modifications. ]
(5) Subject to subsection (4), nothing in this Part shall prevent an employer from paying, on grounds other than the discriminatory grounds, different rates of remuneration to different employees.
Discussion and conclusions
Section 85A(1) of the Acts provides as follows :
- “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”
- “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.
It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”
- “The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”
It is well settled law that mere assertion cannot be elevated to the status of evidence. In this case the Appellant offered no more than mere assertion in support of his contention that the decision to dismiss him was related to his race or ethnic origin and that the Respondent did or would have treated other workers of a different race or ethnic origin in a different manner. The Appellant is clearly dissatisfied with the conduct by the Respondent of the procedures used to arrive at the decision to dismiss him. The Court cannot find however that the Appellant has identified any causal connection between his race and any alleged failings of process.
The Appellant has not presented an example of alleged victimisation or failure to promote him in the period encompassed by his complaint made on 28thNovember 2013. The Court finds that the Appellant’s complaints of discriminations as regards promotion and victimisation must therefore fail.
The Appellant has advanced a claim of equal pay and has identified three comparators, Mr DL, Mr DM and Mr SL, to support his contention that he was not paid equally with persons of a different race or ethnic origin. In the course of its hearing the Court established, and the Appellant accepted (including in evidence), that the three named comparators were, at all material times, in receipt of lesser remuneration than him. The Court consequently finds that the Appellant’s claim of discrimination on the race ground in respect of his remuneration must fail.
The Court finds that the Appellant has failed to establish primary facts from which it could be inferred that discrimination has occurred during the cognisable period for the within complaint. The Appellant has failed to discharge the burden of proof which rests upon him and has failed to establish a prima facie case of discrimination within the cognisable period of the within complaint. In consequence of this conclusion the Court cannot address the contention that events occurring within the cognisable period were part of a continuum of discrimination and as a result the Court does not have jurisdiction to consider the complaints made by the Appellant relating to events outside the period set out in the Acts for the making of a complaint of discrimination.
The Court therefore finds that the Respondent did not discriminate against the Appellant on the grounds of race in contravention of the Acts at Section 8 or Section 29.
Determination
The Court determines that the Appellant was not discriminated against on grounds of race.
The appeal fails and the decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
26 April 2018______________________
MNChairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.