ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000449

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 12/04/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Additional Points;

The Principal failed in his duty to provide and implement an Individual Education Plan for The Complainant.

There was inordinate delay in providing the complainant with the assistance required by him for his particular educational needs.

There was a failure to investigate a remark made by a teacher about the complainant.

Respondent’s Submission and Presentation:

The complainant’s claim is time barred.

The school adjusted its disciplinary and attendance rules to accommodate the complainant.

He was provided with a second set of books so as not to have to carry them to and from school.

He was given access to a laptop until his assistive technology application came through. His initial application was refused by the Special Educational Needs Officer (SENO).

All staff members were reminded of the complainant’s disability.

The school supported his application for Home Tuition.

There were regular meetings with the complainant’s mother.

There is an agreed procedure for dealing with complaints about teachers and the school adhered to this procedure.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Issues for Decision:

The preliminary issue, raised by the respondent, is regarding the time limits contained in the Act in relation to lodging a complaint and whether or not the WRC has jurisdiction to hear the claim.

The second issue is whether or not the complainant was discriminated against as a result of his disability and whether he was treated less favourably than someone not affected by this ground.

Legislation involved and requirements of legislation:

Section 21(2) of the Equal Status Act deals with the time limits in respect of lodging complaints:

“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.

On application to the Director the 2 months can be extended to 4 months.

Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where “on any of the grounds specified…(in this case the disability ground)…a person is treated less favourably than another person is, has been or would be treated”

Section 3(2)(1) provides that “as between any two persons, the discriminatory grounds…are…(g) that one is a person with a disability and the other either is not or is a person with a different disability.”

Section 7(2) states: “An educational establishment shall not discriminate in relation to –

(a)   The admission or the terms or conditions of admission of a person as a student to the establishment,

(b)   The access of a student to any course, facility or benefit provided by the establishment,

(c)    Any other term or condition of participation in the establishment by a student…”

Section 38A states:” (1) Where in any proceedings facts are established by or on behalf of a person from which it can be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.” Therefore I am required to consider the primary facts which are relied upon by the complainant in their proper context. In considering if the burden of proof shifts I must also consider any evidence adduced by the respondent.

Decision:

Preliminary Issue:   The respondents have submitted that the claim was not lodged in line with the provisions of Section 21(2) of the Act. They point out that in the ES1 Form the complainant says that he was discriminated against from November 2011 until April 2015 but that the Form was dated 21^st October 2015. The complainant’s representative stated that the complainant’s mother was still dealing directly with the school about these issues in an attempt to get a satisfactory response and it was only when she felt that that process was exhausted that it was decided to go down the legal route. They referred in particular to the final letter from the school which was dated 25^th June 2015. They also raised the issue that the respondent was a minor until 20^th September 2015 and could not make an application until he was of age.

I do not accept the latter argument as a claim could have been made by his mother on his behalf. Therefore I do not accept that 20^th September 2015 can be considered as the date that the statutory timeline commences. I have carefully examined all the documentation submitted by both parties as well as the oral evidence presented at the hearing. The complainant’s representative stated that the last correspondence received from the school was dated 25^th June 2015 and that this date could be considered as the relevant date for determining the commencement of the timeline. Having reviewed all the evidence I have reached the conclusion that the last date on which the prohibited conduct could have still occurred was the last day of attendance at the school which was mid-June.

Section 21(3)(a)(ii) of the Act states that “exceptionally, where satisfied that it is just and reasonable in the particular circumstances of the case to do so” ,on application by the complainant, the notice requirements can be dispensed with by the Director. The Director duly delegated his functions to me as per the Act. I have noted that this function can only be exercised in exceptional circumstances and existing precedents bear this out. It is in fact a higher standard than that of “reasonable cause”. The responses from the complainant in my opinion have not established that the circumstances leading to the delay in serving notification were exceptional. They therefore do not meet the requirements of justification and explanation necessitated by this Section. I therefore am not empowered to dispense with the notification requirements of the Act.  

For the above reasons I find that the complainant has not complied with Section 21(2) of the Equal Status Act 2000 and accordingly the complaint fails.

Dated:   13^th June 2016