Complainant

Respondent

Parties

Lauren  Phoenix

Allied Irish Banks

Representatives

  Self

Isobel McCarthy Allied Irish Banks

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00068177-001

18/12/2024

This is a case concerning an allegation of discrimination in contravention of the Employment Equality Act, 1998. However, a preliminary issue was raised by the Respondent and I propose to deal with this in the first instance. The issue relates to whether or not the Complainant is statute barred from bringing this complaint, and the determination of this will affect my ability to hear the substantive matter.

The Complainant’s complaint form states that she worked for the Respondent from 11th October 2022 until the 21st April 2023. Her complaint form was submitted to the Workplace Relations Commission (WRC) on 18th December 2024. On 20th December 2024, the WRC wrote to the Complainant stating that the complaint appeared to be presented after the expiry of the statutory timeline of six months. The Complainant was offered the opportunity to respond to this and this is addressed further below.

The Respondent also raised the issue of the statutory timeline as a preliminary issue and submitted that I do not have jurisdiction to hear this matter.

At the hearing, both parties were offered an opportunity to make submissions on this issue and informed that I would make a decision on this in the first instance.

In response to the letter from the WRC dated 20th December 2024, the Complainant replied by email to state that:

“I did not realise I could go further about this until a couple of days ago as somebody from the DSP informed me about it. If I new about the WRC when I was let go I would have put my complaint in sooner.”

She also noted that she suffered from post-natal depression after the birth of her child.

The Complainant, when making submissions, said that the Respondent was more concerned with time limits than with the facts and what happened to her. She regrets that she didn’t make the complaint at the time but says that she did not want to stress herself even more when she was recovering from emergency surgery. In relation to the Respondent’s position that post-natal depression is not sufficient for reasonable cause, she stated that the Respondent was not aware of when her post-natal depression started and it can begin in pregnancy. She said that if her health was better then she would have made the complaint sooner and asked to be allowed to proceed with her case.

The Respondent states that there is no dispute in relation to the dates. The Complainant, by her own complaint form, acknowledges that the breach she is alleging occurred during her employment. The Respondent pointed to Section 41 of the Workplace Relations Act, 2015 which says that a complaint must be submitted within a period of six months, and that section 41(8) provides that this can be extended by an additional six months if reasonable cause is shown for the delay. Further, section 77 of the Employment Equality Act, 1998 has similar provisions. In both cases, the maximum time frame is twelve months. The Respondent submitted that the test in the case of Cementation Skanska (Formerly Kvaener Cementation) v Carroll DWT 38/2003 regarding reasonable cause does not arise in this case because the application was made after the expiry of the twelve month period.

The Respondent said that even if the time frame were to be extended for reasonable cause (which it was stated it could not be), the Complainant’s reliance on the issue of postnatal depression could not be relied upon because this arises only after birth and therefore would not explain and excuse the delay in bringing the complaint as required by the test set out in Cementation Skanska (Formerly Kvaener Cementation) v Carroll DWT 38/2003.

The Respondent stated that it is well established that not being aware of one’s legal rights is not an acceptable reason for not acting on them. The case of Minister for Finance v CPSU & Others [2006] 1 IR 254 was relied upon in support of this where the Court held that:

“ignorance of one’s legal rights, as opposed to the facts giving rise to those rights, cannot be accepted as an excuse for not observing the statutory time limit”

The Respondent also relied on the case of Deborah Ward v The Mater Private Network ADJ-00051289. In that case, the Complainant made various complaints including under s77 of the Employment Equality Act, 1998. The claims were lodged with the WRC over 13 months from the date the Complainant’s employment with the Respondent ended. The Adjudication Officer made the following decision:

“I find that as this complaint has been referred to the WRC in excess of 12 months from the date of alleged contravention, it is statute-barred and accordingly, I do not have jurisdiction to investigate this complaint. Accordingly, I declare this claim to be not well founded.”

The Respondent stated that it is the complainant’s own evidence that her complaint was submitted to the WRC more than 12 months from the date of the matter complained of and on that basis it was submitted that the Adjudication Officer has no statutory jurisdiction to hear this complaint.

The Workplace Relations Act, 2015 (the Act) sets out the ability of the WRC to address disputes.

Section 41 of the Act sets out how an Adjudication Officer should inquire into disputes, and it also prescribes timeframes within which complaints can be made. Section 41(6) and section 41(8) state as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

As the Complainant’s complaint is made under the Employment Equality Act, 1998, section 77 of that Act is also relevant. Section 77(5) states as follows:

(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 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.

As can be seen from both sections in both acts above, the time limit for a referral of a complaint is six months with a possibility in certain circumstances that this can be extended to twelve months. There is no provision in either act for the time allowed to be extended beyond a twelve month period.

The Complainant accepts that the alleged discrimination took place during her employment with the Respondent. Even taken at its very height, whereby the last possible date that any discrimination could have occurred would have been on or before the Complainant’s last stated day of employment of 21st April 2023, then the maximum amount of time available to the Complainant to make a complaint was until the 21st April 2024. As the Complainant’s application form to the WRC was received on 18th December 2024, I find that it is outside the maximum twelve month period allowed under statute and I therefore do not have jurisdiction to hear the complaint.

In the circumstances, I must find that the Complainant did not submit her complaint for adjudication within the time allowed by law and is therefore statute barred from proceeding. 

I find that the Complainant is statute barred from proceeding with her claim and I therefore do not have jurisdiction to hear her complaint.

Statute barred