Complainant

Respondent

Parties

Nice Marie  Tarugo

Health Service Executive trading as  Hse Che Mental Health Services/Clonskeagh Hospital

Representatives

Mr Peter Leonard BL instructed by Regan Solicitors

Ms Valerie Madigan

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00065352-001

12/08/2024

The Complainant is a Healthcare Assistant who worked for a voluntary hospital, Saint Vincent’s University Hospital (“SVUH”). The Complainant had worked for SVUH for a number of years before resigning after her mother, also an employee of SVUH, had died during the covid pandemic.

At the time of her resignation the Complainant had successfully been placed on a HSE recruitment panel related to Clonskeagh Hospital which operated under a HSE Community Health Organisation (“CHO”).

The reference provided by SVUH was poor, particularly as regard to attendance. The Complainant alleges that the reference was discriminatory on the basis of disability as it failed to acknowledge that her attendance was affected by medically certified sick leave. The Respondent then decided not to hire the Complainant and this was communicated to her on the 28th of August 2023.

The Complainant initially brought a complaint against SVUH, ADJ -00050813, initially without legal representation. She then retained a solicitor and counsel. That hearing was held on the 17th of July 2024 and it became clear during the course of that hearing that the claim was misconceived.

The Complainant then submitted a complaint against this Respondent alleging they discriminated against her in a recruitment process. This Complainant was submitted on the 12th of August 2024.

A hearing was held to consider the Complainant’s application for an extension of time.

Mr Leonard for the Complainant made detailed written and oral submissions, requesting to extend time.

Without the benefit of legal advice the Complainant formed the view that the decision to not employ her was a discriminatory event and submitted a complaint within the requisite six-month period. Unfortunately, she incorrectly believed that the employer which had provided the “bad reference” rather than the employer which decided to exclude her, was the appropriate Respondent for her claim.

It would be unfair and unjust, if the Complainant was denied an extension of time in the circumstances of this claim, especially when this important claim can be properly determined once an extension of a further 6 months has been granted. There is no prejudice to the HSE as the reasons why they decided to withdraw the job are not in dispute.

The Respondent denies discriminating against the Complainant. They reasonably relied on references from a former employer as they are entitled to.

The Complainant has raised a complaint of discrimination which is alleged to have occurred on the 28th of August 2023. The Complainant had successfully interviewed for a role and was placed on a panel for selection. However, she was also notified that her position would not be ratified until references had been provided by her previous employer. The date of alleged discrimination was when the Complainant was informed by the CHO HR team that the HSE would not employ her for the role. This was due the poor references received from her former employer.

Section 77(5) (a) of the EEA sets a time limitation for complaints:

 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.

The Complainant has made an application under Section 77 (5)b

(b) On application by a complainant the 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

The Complainant was not advised or represented when she made the initial complaint to the WRC naming  SVUH.  She made that claim within the 6 month time period. She obtained representation shortly before that matter went to hearing on the 17th of July 2024. It became apparent at that hearing that SVUH was the wrong Respondent for the purposes of this act.

The Complaniant then submitted this complaint on the 12th of August 2024, 11 months and 15 days after the date of the alleged contravention.

As the Complainant submitted a different and misconceived complaint during the cognisable period there is no question that she was able to submit a complaint. Her request for an extension of time is based on her lack of knowledge of the relevant legislation and, she argues, the technical nature of the error.

Ms Madigan has referred to the Labour Court decision in Globe Technical Services Limited and Kristin Miller UDD1824 which reaffirmed that not knowing the law is not a reasonable ground for delay in filing a claim.  

I would also point out that the change in Respondent is not merely technical. The Complainant worked for a voluntary hospital and took a complaint against them for providing for a poor reference which she believed was discriminatory. She later brought a complaint against the Respondent because they did not employ her after receiving that reference. These are two different cases.

In the circumstances I do not believe there is reasonable cause to extend the time limits outlined above.

I find that the complaint is not well founded.