Case Number: ADJ-00025115. Workplace Relations Commission.
| Docket Number | ADJ-00025115 |
| Hearing Date | 20 February 2020 |
| Date | 01 June 2020 |
| Year | 2020 |
| Court | Workplace Relations Commission |
Adjudication Reference: ADJ-00025115
Parties:
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Complainant |
Respondent |
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Anonymised Parties |
A Training Specialist |
A Pharmaceutical Company |
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Representatives |
Ms. Caroline Doyle B.L. on the instructions of Sean Ormonde & Co. Solicitors |
Mr. Dermot Cahill B.L. on the instructions of McCann Fitzgerald Solicitors |
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Act |
Complaint Reference No. |
Date of Receipt |
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Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 |
CA-00031525-002 |
11/10/2019 |
Date of Adjudication Hearing: 20/02/2020
Workplace Relations Commission Adjudication Officer: Enda Murphy
Procedure:In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following 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 Respondent, in its written submissions to the WRC on 18 February, 2020, raised an issue of jurisdiction that the Complainant had impleaded the incorrect entity of her employer as the Respondent. Both parties were afforded the opportunity to address this issue at the oral hearing and in the interests of fair procedures the Complainant was also afforded the opportunity to forward further written submissions on this matter following the hearing. The Complainant forwarded a written submission to the WRC on this issue on 2 March, 2020 which was copied to the Respondent for reply. The Respondent forwarded a relying written submission on 13 March, 2020 which in turn was copied to the Complainant for information.
In keeping with the Commission’s normal approach concerning complaints involving material of a sensitive nature, I have decided to anonymise the identities of the parties involved.
Background:
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The Complainant was employed by the Respondent as a Training & Development Specialist from 29 November, 2004 until 23 August, 2019 when she resigned her employment. The Complainant was initially employed on a full-time basis and worked a 39-hour week until December, 2017 when her working week was reduced to 23 hours by agreement following her return to work after a period of maternity leave. The Respondent sought to terminate this agreement with effect from 4 June, 2019 on the basis that the operational needs of the business had changed and that she was required to work to a 39 hour week. The Complainant contends that she did not consent to the increase in her hours and that the Respondent sought to unilaterally alter the amendment to her contract of employment in December, 2017 which had provided for a permanent reduction in her weekly hours to 23 hours per week. The Complainant claims that the Respondent’s decision to unilaterally alter her contract of employment amounted to direct and indirect discrimination on the grounds of gender, family status and disability. The Complainant claims that she was discriminatorily constructively dismissed due to the manner in which she was discriminated against by the Respondent on the grounds of her gender, family status and disability. The Complainant also claims that she was subjected to victimisation by the Respondent contrary to Section 74(2) of the Acts. The Respondent disputes the claims of discriminatory treatment, constructive discriminatory dismissal and victimisation made by the Complainant under the Acts. |
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Complainant’s Position on Issue of Jurisdiction The Complainant disputes the issue raised by the Respondent that the Adjudication Officer does not have jurisdiction to inquire into the complaint because the incorrect Respondent has been impleaded in these proceedings. The Complainant submits that the Adjudication Officer has a discretion under Section 77(5) of the Act to add a party to the proceedings, in this case, XYZ Limited. The Complainant was advised in March 2019 that her permanent contract was to be unilaterally altered and the change was to take effect in June 2019. The Complainant submits that she worked with the Respondent until her discriminatory constructive dismissal on the 23 August 2019. The Complainant submits that the discrimination quite clearly extended over a period of time from the initial discriminatory act in March 2019 until her ultimate dismissal on 23 August 2019. As such, the conduct can be considered as a continuing act, rather than an isolated incident. The Adjudication Officer is therefore entitled to affirm that the 23 August 2019 is the most recent date of the offending conduct and the relevant date insofar as calculating the reference period is concerned. This effectively means that as of the date of the WRC hearing (on 20 February 2020), the Complainant was within the 6-month time frame noted in Section 77(5)(a) of the Act. In reliance on the above point, the Complainant referred to the Supreme Court judgement in County Louth VEC -v- Equality Tribunal [2016] IESC 40 which considered the power of an Equality Officer to enquire into a complaint which was not referred to in the original complaint form. The Complainant submits that the Supreme Court considered the provisions within both Section 77(6A) and Section 77 of the 1998 Act, and confirmed that where either “a regime or practice exists, or where a continuum of discrimination can be established”, then it is possible to plead matters that have occurred well beyond a six-month period. The Complainant submits that the Adjudication Officer can add XYZ Limited to the proceedings without any obligation to consider whether reasonable cause has been made out as per Section 77(5)(b) of the Act. The Complainant submits that in those circumstances, the Adjudication Officer proceed on this basis. The Complainant submits that in the alternative and without prejudice to the foregoing, if the Adjudication Officer does not consider that the discrimination in question was a continuing act, the Complainant’s complaints have been referred within the 12-month period as set out in Section 77(5)(b) of the Act. It was submitted that under Section 77(5)(b) of the Act, the Adjudication Officer has a discretion to substitute the name of the Respondent even where the 6-month limitation period has expired, where reasonable cause is shown. The Complainant submits that she was advised in March 2019 that her contract was to be unilaterally altered and the change was to take effect in June 2019 (the discriminatory act giving rise to her complaints). As at the date of the WRC hearing (20 February 2020), the... |
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