Equal Status Acts, 2000 to 2008
Equality Officer Decision
DEC-S2010- 026
Ms Willo Litzouw
-v-
Matthews Property Management
(represented by Brian O'Brien Solicitors)
File Ref: ES/2008/059
Date of Issue: 14 May 2010
Keywords: Equal Status Acts 2000-2008 - Section 3(2)(a), gender ground -harassment -victimisation - time limits - jurisdiction
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 12 May 2008 under the Equal Status Acts, 2000-2008. In accordance with her powers under Section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, 2000-2008, the Director delegated the complaint to me, Elaine Cassidy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2008. On 18th January 2010, my investigation commenced. As required by Section 25(1) and as part of my investigation, an oral hearing was held on 19th April 2010 and both parties were in attendance.
1. Dispute
This dispute concerns a claim by the complainant, Ms Litzouw that she was harassed and victimised by the respondent on the ground of gender in terms of Sections 3(2)(a), 3(2)(j) and Section 11 of the Equal Status Acts, 2000-2008 in her dealings with Matthews Property Management, the manager of the building where she owns an investment property.
2. Preliminary Issue
2.1 At the oral hearing the respondent raised a preliminary issue which falls to be dealt with prior to the substantive issue. The respondent submits that I do not have jurisdiction to consider the complaint because it is out of time. The respondent argues that the notification which was made by the complainant does not fall within the requirements set out in the Acts, because it did not specify that the complainant would pursue the matter further under the Equal Status Acts.
2.2 The complainant submits that she sent a letter to the respondents within the 2-month timeframe for notification which is required under the Acts. In this letter she described the incident with the respondent which is the subject of the Equal Status complaint. She argues that this letter should be sufficient to constitute notification. Her reason for not mentioning the Acts was that she was unaware of this requirement. In the alternative, she submits that her actual complaint referral was made within 4 months; therefore we should extend the notification period to 4 months.
3. Conclusions of the Equality Officer
3.1 The alleged incident occurred on 30 January 2008. The deadline for notifying the
respondent was 29 March 2008. The complainant sent a letter dated 4 February 2008 to the respondent, but that letter did not comply with the requirements set out under the Equal Status Acts in that it did not indicate an intention to seek redress under the Equal Status Acts. It only threatens to "take matters further". Therefore I find that notification was not made within the 2-month timeframe as required under Section 21(2)(a) below:
"Before seeking redress under this section the complainant-
(a) shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of-
(i) the nature of the allegation,
(ii) the complainant's intention, if not satisfied with the respondent's response to the allegation, to seek redress under this Act.
3.2 The next point to consider is whether the complainant has shown reasonable cause to extend the deadline for notification from two months to four months as set out in Section 21(3)(a) below. This is because the complaint itself was referred to the Tribunal on 12 May 2008. The referral gave full details of the complaint and thus could potentially fulfill the requirements for notification also.
Section 21(3)(a) of the Equal Status Acts, 2000 - 2008, states that:
"On application by a complainant the Director may-
(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or
(ii) exceptionally, where satisfied that it is just and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,
and where such a direction is given, this Part shall have effect accordingly."
3.3 I am conscious of the requirements imposed by section 21(3)(a) above. This provides that where reasonable cause can be shown the Director may extend the period in which the complainant may give notice to the respondent of the alleged prohibited conduct as required by the Acts. In interpreting this in the instant case, I am taking into account the view of the High Court on extending time where there is "good reason to do so" in the case of O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301 where Costello J stated as follows:
"The phrase "good reason" is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the Court should not extend the time merely because an aggrieved plaintiff believed he/she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay".
3.4 I am also taking into account a recent Labour Court decision in the case of Elephant Haulage Ltd v Mindaugas Juska EET082 where the Court reiterated its view (expressed for example in the case of Cementation Skanska and a Worker (WTC/03/44 Determination No. 0426)), albeit under different legislation (Organisation of Working Time Act) that "That in considering if reasonable cause exists, it is for the claimant to show that there are reasons, which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd." In this regard the Court held that there must be a causal link between the circumstances cited and the delay and that the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. The Labour Court went on to state that the "length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time."
3.5 I am required to consider whether the complainant has established reasonable cause for the delay in notifying the respondent under the legislation. The complainants reason was that she was not aware of the requirements of the legislation. In taking this into account, I refer to cases decided in relation to lack of knowledge of the law. In Minister for Finance v CPSU (2006) IEHC 145, Laffoy J. stated in her conclusions that " Although not directly in point here, the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in a medical negligence case, Hegarty v. O'Loughran 1 I.R. 148, which is referred to in the judgment of Morris J. in McDonald v. McBane" She goes on to state "Further, under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of a claimant.....does not prevent a statutory limitation period from starting to run. That is illustrated by the decision of this Court in the Murphy case and the decision of the Supreme Court in the McDonnell case." While that judgement concerned the 6 month statutory time limit to lodge a complaint under the Employment Equality Act, it is, in my opinion, equally applicable to the statutory period for notification of a claim under section 21 of the Equal Status Acts 2000-2008. I therefore cannot accept it as reasonable cause for the delay.
3.6 In summary, I am of the opinion that the complainant has not shown reasonable cause as to why the time limit for notification should be extended to 4 months. The complainant has not detailed any circumstances that both justify and explain the delay.
4. Decision
4.1 As a result of the foregoing, I am not empowered to grant the extension of time. I am therefore precluded from considering further the substantive matter. The complainant's case fails.
Elaine Cassidy,
Equality Officer
14 May 2010