EDA2549

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00045740 (CA-00056591-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 11 April 2024. A Labour Court hearing took place on 07 January 2025.

The following is the Determination of the Court:

DETERMINATION:

Background to the Appeal

This is an appeal by Ms Martina Deasy (the Complainant) from decision ADJ-00045740 CA-00056591-001 of an Adjudication Officer, under the Employment Equality Acts 1998 to 2015 in respect of her complaint against her previous employer Daughters of Charity Child and Family Service (the Respondent).  The Court held a hearing in Dublin on 7 January 2025. At that hearing it was agreed that the parties would submit additional submissions and would consider the relevance or other wise of the case of W. Cummins Plasterers Limited and Jaroslaw Nowakowski EDA086 and on receipt of same the Court would consider the preliminary issue in respect of whether the Complainant had identified a breach of the Act within the reckonable period. The last submission was received by the Court on 25 February 2025.

The Adjudication Officer held that the Complainant had not established a prima facie case of an act of discrimination during the reckonable period.  The Complainant was lodged with the WRC on 11 May 2023.  The reckonable period for the purpose of the Act is 12 November 2022 to 11 May 2023.  The most recent date of discrimination was identified by the Complainant as being 2 May 2023.

1Summary of Complainants submission on preliminary issue.

Mr Gahan BL in his submission noted that it was the Court and not the Respondent who raised the case of W. Cummins Plasterers Limited and Jaroslaw Nowakowski EDA086 which they had invited the parties to comment on. It was his submission that that case is in respect of a complaint being lodged in excess of 12 months from the date of the impugned dismissal and it determined that “a dismissal is a once-off act and cannot be construed as extending over a period within the meaning of section 77(6A) of the Act.”  It was his submission that this determination is no longer relevant.

Mr Gahan BL submitted that the discrimination in this case is clearly part of a continuum of events but regardless of that it was made within six months in accordance with the Act. It was his submission that for an act to constitute discrimination, it must involve a relevant act on the part of the employer, such as re-consideration of the decision to dismiss and not merely a request for information from an employee. He went on to say that the Court has in previous cases confirmed that a continuum of issues can be considered even if they fall outside of the relevant period once there is a breach with the period.

 It was his submission that the date of discrimination remains as the date pleaded, being 2 May 2023 as this was the date the Complainant received confirmation notice of termination of her employment from the Respondent. It is the Complainant’s submission that the date of issuing of notice of termination and the date of dismissal are related events and the claim for redress for discrimination was initiated within six months of the most recent occurrence of the Act. The Complainant’s complaint is that she was discriminated on the grounds of age contrary to the Act. She identified CD a female who in 2022 was 67 and due to retire at 65 but had been granted a post-retirement contract at ages 65, 66 and 67.  The second comparator identified was WP a male who in 2023 at age 66 was granted a post-retirement contract.  The Complainant at 66 was not allowed a post-retirement age contract, and it is her submission that refusal was because of her age (66) and was discrimination on the age grounds.

The Complainant submitted that at a supervision meeting with Mr TM Senior Service Manager on 2 May 2023 he stated that

“The organisation’s grievance policy and procedure has been followed and there are no mechanism within the organisation for this to be heard, it was explained to the Complainant that plans for her succession and for handover of the centre to another manager will commence and some of the discussion in supervision will take this into consideration.”

It was her contention that this was an act of discrimination.

The Complainant stated at the meeting with TM that she did not accept the findings of the grievance procedure, and the matter was going to legal process with the support of her Trade Union Forsa.   TM said he understood this but plans for the centre’s succession plan will commence, and that 2 August 2023 was the planned end date for the Complainant.

Mr Gahan BL referred the Court to the case of Thomas Doolin v Eir Business Eircom Limited ADJ-000045261 where it was stated “The issuing of the notice of termination and the dismissal are related events. I am satisfied that the act of serving notice of termination due to him turning 65 is the time from which this cause of action accrues. Accordingly, I verbally indicated to the parties, prior to the hearing evidence, that I was satisfied that I had jurisdiction to hear the complaint”.

 Mr Gahan BL submitted that the date of discrimination is 2 May 2023, but there is a link between that act of discrimination and the ultimate dismissal on 2 August 2023 which forms a continuum that the Court should take into account.

2 Summary of Respondents submission on preliminary issue

IBEC on behalf of the Respondent submitted that in the case of Cork County VEC v Hurley EDA1124  the Court stated that in considering a contention that events which occurred outside of the cognisable period for the complaint could be considered as part of a regime or continuum, a breach must be identified within the cognisable period and in the case of Cisco Systems Internetworking (Ireland) limited v Olumide Smith EDA1829 the Court stated “ It is only if the Court forms such a conclusion that it can consider events which occurred prior to the cognisable period.”  

The Complainant has confirmed in her supplemental statement that 2 May 2023 is the latest date of discrimination.  The  supervisory meeting held on 2 May 2023 was a routine monthly supervision meeting between the Complainant and her supervisor.  Other than this routine meeting between them, the Complainant does not point to any alleged acts of discrimination or how she was treated less favourably than others based on her age on the named date. It is the Respondent’s submission that the Complainant has not discharged the burden of proof under section 85A or the requirements of section 77(5) or 77 (6) (a) of the Acts.  The Complainant continued to be employed beyond that date until her contractual retirement at age 66. For an event that occurs after the referral of the complaint to the WRC the Court in National Gallery of Ireland v Frances Donnelly EDA1312 held;

“In respect of alleged incidents which occurred after the date of claim, in A School v A Worker Determination No EDA122 this Court held that the Complainant can only rely on alleged acts of discrimination which occurred before the presentation of his claim to the Equality Tribunal for the purpose of seeking redress. However, evidence tendered in relation to later incidents which have probative value in respect to any facts in issue, in relation to matters comprehended by the claim at the time it was made could be admitted”.    In Cummins case reference earlier the Court stated “ a dismissal is a once off act and cannot be construed as extending over a period within the meaning of ss77 (6A) of the Act”

The Respondent submitted that the Complainant was not discriminated against during the cognisable period or at any time She has failed to identify a breach during the relevant period and therefore her complaint must fail.

3 Discussion

The Complainant submitted that she was discriminated at the meeting with her supervisor when he indicated that in respect of her appeal against the decision not to grant her a post-retirement contract that she had exhausted the internal procedures.

 She also felt that the fact he had flagged up that the supervision meetings would discuss handover of her work was discriminatory.

 In her supplemental submission the Complainant provided a number of documents including a letter of 26 January 2023 which informed her that her request for an extension of contract post-retirement had been refused, and a letter dated 21 April 2023 which informed her that her appeal had not been upheld and that this concluded the internal grievance process.  This clearly indicates that the decision had been made in advance of the meeting on 2 May 2023 and that she had been informed of same in advance of that meeting.  The fact that her supervisor re-iterated this position with her at the meeting on 2 May 2023 cannot in and of itself constitute an act of discrimination nor can the fact that he flagged to her that there would be a discussion about the handover process be considered an act of discrimination.

 The Court also notes that the comparators identified by the Complainant were of a similar age to her and both were granted post-retirement contracts. In the Courts view this undermines her complaint that the refusal to give her a post-retirement contract was discrimination on the grounds of her age. Taking all of the above into account the Court determines that the Complainant has not made out a prima facie case of discrimination on the age ground.

Determination

The Court, having considered the submissions both written and oral of the parties, determines that the Complainant has not made out a prima facie case of discrimination on the age ground. The appeal fails.  The Decision of the Adjudication Officer is upheld

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
ÁM	______________________
14 May 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Áine Maunsell, Court Secretary.