SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2015
CHILDREN’S HEALTH IRELAND AT CRUMLIN
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MS LOUISE WHELAN
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. An appeal of an Adjudication Officer's Decision No(s)ADJ-00016270 CA-00020941-001
2. The Appellant appealed the Decision of the Adjudication Officer to the Labour Court on15 April 2019. A Labour Court hearing took place on 29August 2019. The following is the Court's Determination:
Background to the Appeal
This is an appeal by Ms Louise Whelan (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00016270, dated 11 March 2019) under the Employment Equality Act 1998 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 17 April 2019. An amended Notice of Appeal was received on 3 May 2019. The Court heard the appeal in Dublin on 29 August 2019.
The Complainant has been employed in the Human Resources Department of Children’s Health Ireland at Crumlin (formerly known as Our Lady’s Children’s Hospital Crumlin) (‘the Respondent’) since October 2006. She is a Grade IV Officer. She availed herself of statutory maternity leave from her post from 13 March 2017 to 10 September 2017. Between 11 September and 15 September 2017, she took the benefit of the public holidays that had fallen during her period of maternity leave. She then went on sick leave from 16 September 2017 until 4 March 2018, inclusive. Finally, she took her accrued annual from 5 March 2018 until 8 April 2018, on which date she returned to work. The Complainant told the Court that she had spoken to her line manager on 10 May 2018 about her disappointment arising from the fact that five vacancies had been advertised in the Respondent’s Human Resources Department during her absence between March 2017 and April 2018 and she had not been expressly been informed of them by the Respondent.
The Complainant’s case is that she was discriminated against on the gender ground in circumstances where she was not informed of relevant promotional vacancies that arose while she was absent from work on successive periods of maternity leave, extended sick leave, annual leave and leave in lieu of public holidays between 13 March 2017 and 8 April 2018. The Complainant submitted a claim to this effect under the Act to the Workplace Relations Commission on 1 August 2018. The Adjudication Officer to whom the claim was assigned decided that the claim was not well-founded.
Section 77(5) of the Act provides:
- “(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 [Director General] 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.
(c) This subsection does not apply in relation to a claim not to be receiving remuneration in accordance with an equal remuneration term.”
Discussion and Decision
No claim arises under the Act in relation to the periods during which the Complainant was absent on sick leave or on annual leave or while availing herself of leave in lieu of public holidays. The Complainant’s maternity leave ended on 15 September 2017 i.e. some ten-and-a-half months before she referred a complaint to the Workplace Relations Commission. The complaint is, therefore, patently out of time.
The Complainant submits that she needed time – following her return to work in April 2018 - to research the details of the vacancies that had occurred during her maternity leave. However, in her own submission to the Court, she states that she initiated a discussion with her line manager as early as 10 May 2018 in relation to this issue. It follows, that the Complainant’s application for an extension of time is not well-founded and she has not demonstrated reasonable cause in support of her application in this regard.
On the basis of the foregoing, the Court finds that it does not have jurisdiction to hear the appeal. In doing so, the Court makes no finding in relation to the merits of the Complainant’s substantive claim.
The appeal is dismissed for the reasons stated. The decision of the Adjudication Officer is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
30 August 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.