ADJUDICATION OFFICER DECISION
Healthcare Service Provider
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant was employed as a Core Staff Programme Assistant by the respondent having commenced employment in August 2010. The position was part-time and the complainant worked 24 hours per week. The complainant in April was accepted for a 4-year degree course in a university and sought changes in her working arrangements to facilitate her attendance at college. Discussions on this matter took place with management. The outcome was that the complainant requested, and the respondent agreed to a one-year career break. The complainant alleges that she sought other working arrangements but that she was informed that the one-year break was the only available option open to her. In contrast a male colleague was granted a four-month career break for a boating holiday and consequently the complainant believes that the respondent discriminated against her.
Summary of Complainant’s Case:
The complainant gained entry to a four-year degree course to commence in September 2017.
The complainant informed management of this in mid-April 2017 and sought to reduce her hours to accommodate attendance at the course.
The complainant’s line manager verbally approved a reduction in working hours on 13 September but one week later the complainant was informed that this was no longer an option.
The complainant then requested a two-month unpaid break but was finally told that the only option available was to take a one-year career break. The complainant reluctantly agreed to this.
One month later a male colleague successfully applied for a four-month career break in order to take a boating holiday.
Summary of Respondent’s Case:
The complainant states that the most recent act of discrimination occurred on 21 September 2017 and the complaint form was received by the WRC on 18 September 2018. The complainant’s case is therefore out of time and statute barred.
When informed of the complainant’s intention to attend university (approx. 80 kilometres distant from the workplace) the respondent’s management made several attempts to agree changes to the complainant’s working hours.
When advised that that the complainant’s classes did not finish until 2pm it was clear that it was not possible to facilitate the request and subsequently the complainant applied at short notice for a one-year career break.
The career break granted to the male colleague was in full accordance with the procedures of the Career Break Policy which stipulate a minimum break of three months.
Findings and Conclusions:
The complainant had not indicated on the complaint form on which of the discriminatory grounds that she was alleging that the respondent discriminated against her. The complainant clarified that her complaint was based on the grounds of gender.
The respondent raised the matter of the time period provided by the Employment Equality Act, 1998, for the lodging of a complaint. Section 77(5)(a) of the Act states:
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 a 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(5)(b) allows the complainant to apply for an extension of this time to 12 months if reasonable cause can be established in that regard. No application for such an extension has been made in the case before me.
On the complaint form, which was received by the WRC on 18 September 2018, the complainant stated that the most recent date of discrimination occurred on 21 September 2017. In her written submission and in evidence the complainant set out the chronology of events that extended over a week and which culminated with a number of meetings with her line manager taking place on 21 September 2018. The outcome was the complainant lodged a written application for a year’s career break dated that day. The complainant stated in the letter that:
“I have been successful in gaining a place in Trinity College Dublin on a Master’s degree course which has turned out to be more of a time commitment than previously anticipated.”
The complainant said in evidence at the hearing that she felt that she was left with no option but to do so by the actions of her employer. The respondent stated that they breached their own rules on the notice required for such applications in order to facilitate the complainant. The respondent confirmed permission for the career break by letter dated 3 October 2017 in which they also outlined the procedure regarding a return to work from such a break.
In October 2018 the respondent wrote to the complainant regarding the fact that no contact had been made by her in relation to her return to work which was due to have occurred on 5 October 2018 and stating that failure to confirm a return to work would be deemed by the respondent as a resignation. The complainant replied to the effect that she was in discussion with the WRC re a discrimination case. On 16 October the respondent sent another letter again outlining their position. Later that month the complainant sent an email to the respondent enquiring if she was eligible for a redundancy package that she believed was available to staff. The respondent replied on 31 October 2018 and stated that the complainant was not eligible for the voluntary leaving package as she was not a current employee of the respondent.
As noted above the complaint form was lodged with the WRC on 18 September 2018 prior to any of the correspondence in October outlined above. The complainant’s case is based on the allegation that the complainant’s line manager had initially agreed changes to her working hours, but the respondent subsequently altered their position and left her with no option but to apply for a career break. The line manager in evidence said that initial discussions were based on a course timetable that would accommodate the complainant working 20 hours per week and that when another course timetable was issued this was no longer feasible. There is disagreement in relation to a change in timetables. What transpired is that during a number of meetings on 21 September it was clear that the only option that the respondent viewed as viable, having regard to the requirements of the service which they provided to their clients, was the option of the one-year career break. The complainant applied for this option and according to her evidence left the workplace on that day as there was annual leave due to her. The events that led to her complaint came to a conclusion on that date.
The complainant in response to the issue stated that she had delayed making a complaint to the WRC as she was in discussions with the respondent regarding the matter. The respondent did not accept that there were discussions during this time with the complainant. The complainant in evidence accepted that the first contact that she had with the respondent regarding the matter was in June 2018. It is clear therefore that there was no contact between the parties in the 6 months following the 21 September 2017. The Labour Court has considered this matter in Cementation Skanska v Carroll, DWT 38/2003 and stated:
“The claimant’s failure to present the case within the six-month time limit must have been due to the reasonable cause relied upon. The claimant must satisfy the Court that, had those circumstances not been present, he would have initiated the claim in time.”
The complainant in this case has failed to furnish a valid reason for not being in a position to lodge the complaint within the time frame set out in the legislation.
It is clear to me therefore that the last actions / communications between the parties prior to the lodgement of the complaint occurred on 21 September 2017 and that the claim for redress was lodged in excess of the period of 6 months following that date as provided for in Section 77(5)(a) of the Act. I therefore do not have jurisdiction to hear the complaint.
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.
As detailed above I find that the complaint was not lodged within the time frame set out in Section 77(5)(a) of the Act. Consequently, I have no jurisdiction in the matter as the complaint is statute barred.
Dated: 28 May 2019
Workplace Relations Commission Adjudication Officer: