Complainant

Respondent

Parties

Edith  Omoruyi

Sunbeam House Services

Representatives

 AD'REME Solicitors

Peter Gilfedder IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00067505-001

19/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067510-001

19/11/2024

Complaints

CA-00067505-001 Receipt Date: 19/11/2024 Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 and CA-00067510-001  Receipt Date: 19/11/2024 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Background The Complainant was engaged by the Respondent as a Social Care Worker, initially through an agency which is asserted to fall within the definition of an employment agency under the Protection of Employees (Temporary Agency Work) Act 2012, and subsequently as a direct employee.

 It is contended, inter alia,  that during both periods, the Complainant worked under the direction and supervision of the Respondent.

The Complainant made supplemental written submissions in relation to the Equal Status and Unfair Dismissals complaints, disputing the Respondent’s preliminary objections and asserting that the statutory time limits and service requirements are met, thereby conferring jurisdiction on the Workplace Relations Commission.

The Respondent is a Section 38, HSE‑funded organisation providing services to adults with intellectual disabilities in Dublin and Wicklow. In November 2023, concerns arose regarding the Complainant’s punctuality and time‑recording practices, which led to an investigation meeting on 1 December 2023. The Respondent submits that, without prejudice to their substantive position,  the complaints are out of time, that the Complainant does not have the requisite service to bring a claim under the Unfair Dismissals Act 1977, and that the Equal Status claim is statute‑barred due to non‑compliance with the notification requirements under the Equal Status Acts 2000–2015.

Accordingly, it is argued that the Adjudication Officer lacks jurisdiction to hear the complaints.

Background

The Complainant was employed by the Respondent as a Social Care Worker. Before direct employment, the Complainant had been assigned to the Respondent through a previous agency. The Complainant submits that this agency was an “employment agency” within the meaning of section 2 of the Protection of Employees (Temporary Agency Work) Act 2012 (“the 2012 Act”).

Supplementary Submission

The Complainant provided a written  supplemental submission in addition to their submissions on the substantive issue. They addressed the Equal Status and Unfair Dismissals complaints. They also addressed the substantive claim.

The Respondent’s first preliminary objection is addressed indirectly in the submission.

Complainant Response -Time Limits-

The Complainant sets out  that the cognisable period advanced by the Respondent is incorrect. This is based on the written complaints submitted to the Respondent on 17 January 2024 and 28 March 2024, following participation in flawed internal procedures culminating in dismissal. An appeal was lodged on 1 March 2024 and heard on 19 March 2024, at which the appeal was not upheld and only unsigned, undated minutes were provided.

Subsequent to the correspondence of 28 March 2024, the Respondent initiated an investigation, the outcome of which issued on 31 October 2024. The complaint was referred to the WRC on 19 November 2024, less than one month after the completion of all internal processes. It is the Complainant argument that the time runs from the completion of all appeals and not the offending acts. On this basis the Complainant argues that the complaints are within time.

The last alleged discriminatory act outside the Respondent’s procedures occurred on 13 November 2023. A formal grievance was submitted on 17 January 2024, at a time when a disciplinary process relating to alleged lateness was already underway.

Pursuant to the Equal Status Act 2000, the Complainant notified the Respondent in writing within two months of the last alleged occurrence of the nature of the allegation and the intention to seek redress if dissatisfied. Dissatisfaction arose following the investigation outcome of 31 October 2024, after which redress was sought under the Equal Status Act 2000 and the Unfair Dismissals Act 1977.

Accordingly, the Complainant maintains that the applicable cognisable period is 31 October 2024 to 31 March 2025, and that the referral to the WRC on 19 November 2024 falls squarely within that period.

Third Preliminary Objection - Length of Service

The Complainant challenges the  Respondent assertions that the Complainant lacks the requisite service under the Unfair Dismissals Act 1977, citing employment from 25 September 2023 to 26 February 2024.

The Complainant contends that this is incorrect, submitting that they were engaged as an agency worker from January 2023, working under the direction and supervision of the Respondent, and subsequently on a direct contract until 26 February 2024, amounting to approximately 13 months’ service. The agency, Biag and Mirza Health Services t/a Kareplus Southside, is an employment agency within the meaning of Section 2 of the Protection of Employees (Temporary Agency Work) Act 2012.

Reliance is placed on Section 13 of the Unfair Dismissals (Amendment) Act 1993, which provides that an agency worker shall be deemed to be an employee of the end-user (the Respondent) for the purposes of unfair dismissal claims, and any redress shall lie against that third party.

The Complainant submits that they fall within the definition of an “agency worker” and, by operation of statute, are deemed to have been employed by the Respondent for the full duration of the assignment.

Accordingly, the Complainant maintains that the minimum service requirement is satisfied, and that the Respondent’s objection does not apply.

Complainant  Conclusion

The Complainants respectfully request this Adjudication Officer find that the time limits and the length of service are sufficient to allow for the Commission to have jurisdiction over the matters for a full substantive hearing.

Background to the Complaint

The Respondent is a HSE‑funded Section 38 charity providing residential, respite, and day supports to adults with intellectual disabilities across Wicklow and Dublin, serving c380 clients with over 560 staff.

In November 2023 concerns were raised about the Complainant’s lateness and instances of clocking in without being present. Following emails from management outlining specific dates of lateness, the Complainant attended an investigation meeting on 1 December 2023

Respondent Position

First Preliminary Argument  - Preliminary Matters to Be Dealt with First.

The Respondent relied on a series of relevant cases wherein the Labour Court has held that a preliminary issue may appropriately be determined in advance where it could lead to considerable savings in both time and expense and where it constitutes a question of pure law where no evidence was needed and where no further information was required.

In light of this authority and general practice , the Respondent submits that the Adjudication Officer should first determine the preliminary issues identified in the present case, before considering whether the substantive matters fall to be heard.

Second  Preliminary Argument  - Time Limits

The Respondent notes that the complaint was presented on 19 November 2024, giving a cognisable period from 20 May 2024 to 19 November 2024.

The alleged acts of discrimination (10 October 2023 to 13 November 2023) and the dismissal (26 February 2024,) fall outside this period. The Respondent does not dispute the dismissal as a fact.

Reliance is placed on section 41(6) and 41(8) of the Workplace Relations Act 2015, which provide that an Adjudication Officer shall not entertain a complaint presented outside six months from the date of contravention, unless extended (up to a further six months) where reasonable cause is established.

The Respondent submits that no such reasonable cause arises, relying on Cementation Skanska (formerly Kvaerner Cementation) Ltd v Carroll (DWT0338), where the Labour Court held that a claimant must show reasons which both explain the delay and afford an excuse for the delay, with a required causal link between the circumstances relied upon and the failure to lodge the claim in time. The Court further emphasised that the explanation must be objectively reasonable.

The Respondent sets out that this  approach reflects O’Donnell v Dun Laoghaire Corporation [1991] ILRM 301, where Costello J stated that the test is objective and that delay cannot be excused merely because the claimant believed it justified, requiring reasons that “both explain the delay and afford a justifiable excuse for the delay.”

The Respondent further relied up on established authorities demonstrating the narrow application of extensions in the following:

• Byrne v Quigley (UD762/94)
• Lidl Ireland GmbH v Moreira (EDA1921)
• A Respondent v An Appellant (EDA188)
• Tyco Healthcare (Irl) Ltd v A Worker (EET025)

Accordingly, the Respondent submits that the claims are statute-barred and that no objective reasonable cause  exists to justify an extension of time.

Third Preliminary Argument – Unfair Dismissals Act, 1977 Service Requirements 

Notwithstanding the preliminary objection on time limits, the Respondent submits that the Complainant lacks the requisite length of service to pursue a claim under the Unfair Dismissals Act 1977.  The  Unfair Dismissals Act 1977 provides that the Act shall not apply to an employee who, at the date of dismissal, had less than one year’s continuous service.

The Respondent relies on BDO v Ms Eimear Stynes (UDD1947), where the Labour Court confirmed that it drew jurisdiction from the Act. The Act makes clear that, in order to enjoy its  protection, the Complainant  must meet the service requirement set out in the Act unless a provision of that Act exempts her from that requirement. The Appellant in BDO had  less than 12 months service at the date of termination of employment, and the court found that they lack the locus standi to pursue the appeal.

In the within case the Complainant’s period of employment ran from 25 September 2023 to 26 February 2024, amounting to less than 12 months’ continuous service.

 Accordingly, pursuant to 1977 Act, the Respondent submits that the Adjudication Officer lacks jurisdiction to hear the claim under the Act.

Fourth Preliminary Argument – Equal Status Act

 The Respondent refers to the complaint form that  the most recent alleged act of discrimination is dated 13 November 2023, while the complaint was submitted to the WRC on 19 November 2024 over 12 months from the date referred to.

The Respondent relies on Section 21(2)(a) of the Equal Status Acts 2000–2015, which provides that, before seeking redress, a complainant must, within two months of the alleged prohibited conduct (or the last such occurrence), notify the respondent in writing of the nature of the allegation and the intention to seek redress under the Act if dissatisfied with the respondent’s response.

Section 21(3)(a) allows the notification period to be extended to a maximum of four months for reasonable cause or disapplied only exceptionally where it is just and reasonable to do so.

The Respondent submits that the claim under the Equal Status Act is outside the statutory timeframe. It is further noted that no ES1 notification form was never submitted to the Respondent, nor was such a form received from the WRC. The Respondent first received notice of the claim on 19 November 2024 by way of an employment rights referral.

The Respondent relies on Borsca v Bank of Ireland (ADJ-00010452)and section 21(3)(a) that  provides a limited discretion to extend or dispense with the statutory notification requirement. An extension of time may be granted only where reasonable cause is shown, and even then, is capped at a maximum of four months. Only in exceptional circumstances, where it is considered just and reasonable, may the notification requirement be disapplied altogether.

Accordingly, the Respondent respectfully submits that the Adjudication Officer lacks jurisdiction to hear the Equal Status Act claim and requests that the claim be dismissed.

Respondent Conclusion

The Respondent respectfully submits that the Complainant’s claims are out of time and that the Adjudication Officer therefore lacks jurisdiction to hear them. The Respondent requests that the Adjudication Officer uphold the preliminary objections set out in this submission and dismiss the claims before the WRC

Preliminary Objections

The Respondent has raised a preliminary objection in respect of time limits. Section 41(6) of the Workplace Relations Act 2015 provides that an Adjudication Officer shall not entertain a complaint if it is presented outside six months from the date of the contravention unless satisfied that reasonable cause exists to extend that period pursuant to section 41(8).

The Labour Court in Cementation Skanska v Carroll established that the test for reasonable cause requires the Complainant to show reasons which both explain the delay and afford a justifiable excuse for it, with a causal link between those circumstances and the delay. This approach reflects earlier High Court authorities where it was held that the explanation must be objectively reasonable.

 Accordingly, I must first determine the date of the alleged contravention, assess whether the complaint was presented within time, and, if not, consider whether reasonable cause has been established.

In circumstances where multiple preliminary objections have been raised, I will consider each. It is well established that where any one of these objections is upheld, it may be dispositive of the complaint. However, for completeness, and in order to provide clarity to the parties, I will address the  issues raised.

1.       Preliminary Issues

2.       Time Limits / Cognisable Period

3.       Equal Status Act – Statutory Notification

4.       Unfair Dismissals Act – Length of Service

5.       Whether, having regard to the above issues, the Commission  has jurisdiction to hear either or both complaints.

The Respondent set forth four grounds for preliminary objection and for the first  draws attention to several cases where the Labour Court and EAT indicated that preliminary should be examined before the full hearing of the issues. For the case law cited and the numerous other authorities, I have decided that these preliminary matters must, for reasons of efficiency,  be dealt with first.

Time Limits (Unfair Dismissals Act, 1977)

I have considered the Act and the case law cited and have examined the complaint form submitted  by the Complainant. Complaint CA-00067510 was received on the 19/11/2024 seeking adjudication under Section 8 of the Unfair Dismissals Act, 1977.The Complainant set out in that form to the Commission that they had commenced work on the 25/09/2023 and was dismissed on the 26/02/2024. Their declaration was that they had been unfairly dismissed and that they had at least 12 months service. This was, and is, not factually correct,  and the lack of service takes them outside of the 1977 Act.

It was drawn to the Complainant’s attention on the 11 May 2026, by the Commission, that they were required to have the 12 months service. This was again drawn to the attention of the Complainant on the 11th of December.

An oral argument was put forth that emerged only  at the later hearing that the Complainant had been offered the contract some time before taking up employment. The delay was due to being abroad on family business. It was set out by the Complainant Representative that this created an “implied contract”. This is a novel argument and fails on a number of points.

No authorities were offered and I am aware of none that would support such a position. To accept such an argument equates to service  would undermine all manner of employment and related statutes beyond the unfair dismissal act, it would also give rise to a multitude of complaints in terms or rights to access other employment fair beyond what is at contention here and is clearly not the intent of the Oireachtas.

It may well be true to say that the contract was implied from the earlier date, but the service, be it continuous or otherwise, began on the first date of the work performed. Anything else cannot be described as service in the statutory sense,  given it would accrue rights under other employment statutes. I cannot accept that it accrues an individual  rights under the 1977 Act. I can only find that the service with the Respondent and not any service of a third party  is the statutory service with reference to the Act.

On that basis  I have no jurisdiction in this matter.

Unfair Dismissals (Amendment) Act 1993

A further novel argument arose as to the operation Section 13 of the Unfair Dismissals (Amendment) Act 1993 where the  Complainant  argues by first having worked for an agency and also under the direction of the current Respondent on placement that Complainant now enjoys the protection of the 1977 Act, essentially accruing the service of both employment

Accordingly, the Complainant maintains that the minimum service requirement is satisfied, and that the Respondent’s third preliminary objection does not apply.

Following  the Labour Court decision in Sheehan v Boston Scientific(UDD248), on appeal from ADJ-00027337, where similar circumstances arose, I note that the Adjudicator found that agency service could count as continuous for the purposes of employment rights, the Labour Court overturned that decision. The Court holding that Section 13 of the Unfair Dismissals (Amendment) Act 1993 does not create continuity of service where an agency worker later becomes directly employed by the end user. It applies only during the period of agency assignment and ceases upon termination of that arrangement.

Accordingly, the Court has  found that Section 13 cannot operate to join the period of agency employment, ending on 5 July 2019, with the subsequent direct employment commencing on 6 July 2019 and therefore does not establish continuous service for the purposes of the Act.

Continuous service means uninterrupted employment, which is broken if the employee resigns or is dismissed. Exceptions exist where this 52-week service rule does not apply, such as dismissal related to pregnancy, trade union activity etc. In following the Court decision, I have to conclude that there is no satisfaction of the 52 weeks service and the Commission can have no jurisdiction.

Time Limits (Equal Status Act)

I have considered the Act and the case law cited and have examined the complaint made by the Complainant under this heading.

Complaint CA-00067505 was received on the 19/11/2024 seeking adjudication under Section 21of the Equal Status Act ,2000. The Complainant set out that they had been discriminated on the basis of their Race and that  they had been discriminated against, harassed, victimised by both direct and indirect discrimination.

The Complainant set out that the first incident of discrimination was 10/10/2023 and the  most recent date of discrimination was 12/11/2023.

It was drawn to their attention on the 11 May 2026 that discrimination at work is covered by the Employment Equality Acts discrimination outside the workplace is covered by the Equal Status Acts. The Complainant was asked to clarify under which legislation they wished  to pursue their complaint and if they  wished to withdraw that specific complaint CA-00067510-001.

I have heard nothing and found nothing on the file to show that wished to change their complaint and it was acknowledged orally by the Complainant representative that they were pursuing the Equal Status claim regardless.

It is the argument of the Complainant that the appeals process provided by the  Respondent enlarged the time allowed to bring the complaint, an issue referred to at the first internal hearing of the matter. This is a misunderstanding of the operative law. The Act fixes time to bring the complaint by reference to the offending act and not the appeal and this applies equally to both complaints. This is settled law and practice of the Commission and the Courts.

It is, as the Respondent set out, that the Complainant is manifestly outside the statutory timeframe and denies the Commission jurisdiction to hear this complaint.

Equal Status Act Jurisdiction and Notification

Further to this, even if the complaint was in time, which it is not, the Commission has no jurisdiction to hear a complaint under that referred act with the current factual matrix.  The Equal Status Acts concern access to goods and services, not employment relationships,  as notified to the Complainant in the letters of November and December 2024 by the Commission

The Respondent has highlighted  that no ES1 notification form was ever issued to them and argue that proper notification is a statutory prerequisite to jurisdiction under the Act. I have heard no argument and seen no evidence that it was served.

While section 21(3) allows for a limited discretion to extend or dispense with the notification requirement where it is just and reasonable to do so, I am not satisfied, on the evidence before me, that there are any circumstances which would justify the exercise of that discretion in this case.

 The purpose of the ES1 notification form as regards the Act is to allow the parties resolve their difficulties without having to refer it to the Commission.

The notification obligations on the Complainant were also started by the act that they found offensive and they have not complied with the notifications required under the Act and notified to them by the Commission in November and December 2024.

It would appear from the submissions and oral arguments that the correct route for the Complainant was a possible complaint under the Employment Equality Acts and this was highlighted  in correspondence from the Commission on 11 May 2026.

Given the Complainant is an employee and not complaint of access to goods and services they have no locus standii under to bring an Equal Status complaint rather than an Employment Equality complaint.

Any of these  failures under the equality acts would have been enough to have  deprived the Commission of jurisdiction on the matter.

Conclusion

I must dismiss the claims on the basis that the Commission lacks jurisdiction under both the Unfair Dismissals Act and the Equal Status Act in the arguments set out. Regarding the unfair dismissal claim, the Complainant failed to meet the statutory requirement of 52 weeks' continuous service. The complaint under the Equal Status Act is  inadmissible due to significant procedural and substantive failings. The claim was submitted well beyond the statutory timeframe, and the Complainant failed to serve the mandatory ES1 notification form, a fundamental prerequisite for the Commission’s jurisdiction. Additionally,  the Equal Status Act governs access to goods and services rather than employment relationships; consequently, the Complainant lacked the standing to pursue a claim under this Act for a workplace dispute.

CA-00067505-001

I find that I have no jurisdiction to hear this complaint. Accordingly, the complaint fails.

CA-00067510-001

I find that I have no jurisdiction to hear this complaint. Accordingly, the complaint fails.

Implied contract, agency worker, Section 13 Unfair Dismissals (Amendment) Act 1993, continuous service, Protection of Employees (Temporary Agency Work) Act 2012, end‑user control supervision agency to direct employment continuity, cognisable period