DIR-S2013-004
ES/2012/0177
Direction under Section 21 of the Equal Status Acts, 2000 - 2011
Complaint by A Newspaper Reader against A Newspaper under the Equal Status Acts, 2000 to 2011
Decision on the application under section 21 of the Equal Status Acts, 2000 - 2011 for extension of the time limits for referral of a complaint
Background to the complaint
1. A Newspaper Reader (complainant) referred a complaint to the Equality Tribunal on 31 December 2012, alleging that he was discriminated against on the gender ground by A Newspaper (respondent) on and before 30 June 2012. The complainant alleges that he was discriminated against in that the respondent published an assertion of an alleged link between football tournaments and domestic violence by men against women. The complainant says that as a man he was directly affected by the published assertion and that he was treated less favourably as he says the Newspaper refused to publish his views on the subject.
Provisions of the legislation
2.1 Section 21 (6) (b) of the Equal Status Acts, 2000 to 2011, states that
(a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of occurrence of the prohibited conduct to which it relates or, as the case may be, the date of its most recent occurrence.
(b) On application by a complainant the Director 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.
Referral of the Complaint
The date of the most recent occurrence of an alleged discriminatory act was 30 June 2012. The complaint was referred to the Tribunal on 31 December 2012, which was outside the 6 months period for referral stipulated in the Acts, but was within the 12 month period for which an extension can be granted for reasonable cause. The date of expiry for referral of the complaint was 29 December 2013.
Notification of the complaint
4. Notification in accordance with the Acts was made to the respondent on 22 July 2012.
Application for an extension of time limits for referral of a complaint
5.1 The complainant applied for an extension of time for referral in a letter dated 15 January 2012. In that letter the complainant submitted the following.
That the initial publication of the article was not in itself a discriminatory act.
In his view that the claim of discrimination could only arise once the facts had been drawn to the respondents’ attention.
The two acts of discrimination on which his complaint is based arise from the lack of response by the respondent.
The date of discrimination would therefore be linked to the date of a response by the respondent.
5.2 The Tribunal wrote to the respondent on 7 February 2013 inviting them to submit any comments in relation to the application for an extension of time. In a letter dated 11 February 2013 the respondent stated that they do not agree to the extension request as they are of the opinion that the arguments put forward by the complainant for such an extension are spurious.
6.1 I am conscious of the requirements imposed by section 21(6)(b) of the Equal Status Acts 2000 to 2011. This provides that where reasonable cause can be shown the Director may extend the period in which the complainant may refer a complaint to the Tribunal.
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".
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."
6.2 In this case the complaint was referred two days outside the time limit. The complainant has not attempted to identify any reasons which explain the delay or afford an excuse for the delay, but instead the complainant has discarded his originally cited date of discrimination and is seeking to make new arguments as to the date of discrimination based on the inaction of the respondent. I cannot accept in these circumstances that the inaction of the respondent affords the complainant an excuse for his delay in referring a complaint to the Tribunal.
Delegation of functions
7. The Director has duly delegated his functions to me under the Equal Status Acts 2000 to 2011.
Direction under Section 21 of the Equal Status Acts, 2000 - 2011
8.1 It is my opinion that the complainant has not established reasonable cause for the delay in referring his complaint. I, therefore, am not empowered to direct an extension of time in which to refer a complaint to twelve months in this case.
_________________
Peter Healy
Equality Officer
5 November 2013