ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002595

Complaints for Resolution:

Date of Adjudication Hearing: 08/08/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 Section 25 of the Equal Status Act, 2000 following the referral of to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.This case involves a claim by the complainant against the respondent that he was discriminated against on the ground of race and religion , in terms of Section 3 and, contrary to Section 5 of the Equal Status Act, 2000-2015. There is also a claim of victimisation.

Complainant’s Submission and Presentation:

The complainant has made all submissions to the WRC via the medium of a catalogue of emails commencing on April 1, 2016. In response to the question posed on the complainant form, on whether he needed special facilities to enable attendance at an Adjudication hearing? the complainant stated that it was his preferred wish that “ all matters be dealt with under writing ,for to be called to a distant meeting would severely endanger and/or harm my capacity to defend myself” The complainant also stated that he “ was disabled in various ways” and would have had difficulty travelling to the location of the hearing .

The complainant described his complaint in the following manner:

“That PB2, since a mid 2012 complaint was lodged by me that the same shared PB2 then allegedly acted illegally upon that PB2, between start of an appeal from Spring 2013-end of Autumn 2015 discriminated as to my religion as “free conscience “and “race” as each interpretable where the 2000 Act is subject to the ECHR thereto for each, and did so for very complex reasons.”

The complainant proceeded to seek an extension on time limits. He described the complaint of victimisation as grounded on excessive questioning by PB2 failure to uphold his right to protection under Aarhaus Convention . The initial complainant took the form of 49 pages .

On 15 April, 2016, the WRC wrote to the complainant seeking his response to the following.

In accordance with Section 41 of the Workplace Relations Act, 2015 an Adjudication Officer may not entertain a complaint/dispute if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

It would appear from the information submitted by you that these complaints do not fall within the statutory timelines. The 6 month time limit expired 30/09/2015. In the circumstances, your complaints cannot be entertained by an Adjudication Officer.

However, if you consider that your failure to present the complaints within the statutory timelines was due to reasonable cause, you may make a submission accordingly to the Workplace Relations Commission. Any such submission should be presented to the Commission’s Information and Customer Services within 14 days of the date of this letter. Submissions received after that period cannot be considered.

On 25 April, the complainant sought the protection of Section 21 of the Act to “permit an extension for/to the reason/s for re-occurrence “.

Further submissions were advanced by the complainant and the case proceeded to a hearing on August 8, 2016. The complainant was not in attendance.

Following a request from the Adjudication Officer, the complainant submitted an electronic version of the ES1 and ES 2 response a number of days post hearing.

The complainant requested that a Preliminary Reference Court of justice of the European Union (CJER)   be requested by either the WRC or IHREC in relation to his case.

Respondent’s Submission and Presentation:

The respondent disputed all claims. It was submitted on behalf of the respondent, that the complainant had been engaged in a voluminous written communication exchange from 2013-2015. This arose following an earlier series complaints to another public body (PB1) in relation to roadworks in the vicinity of the complainant’s home which had caused a residual disturbance when Lorries passed.

By way of background ,the respondent pointed me to an appeal of a decision of the earlier public body which had been passed to the complainant on October 1, 2015 by the respondent .( PB2)This was one of three decisions given to the complainant .

For the purposes of anonymisation , required in this decision , the case will be referred to as MR X V A Public Body No 2 .The complaint referred to a submitted refusal of the public body to supply certain documents .

PB2 decision stated:

“ ….. I have reviewed the decision of PB1 in this case, I hereby vary the decision of PB1 and find that, apart from that information released by PB1 which is not in the scope of this appeal, and PB1 has taken all reasonable steps to provide the appellant with the information sought …….”

A right of appeal to the High Court on a point of law was permitted not later than two months. This was not actioned by the complainant.

The respondent has never met with or spoken to the complainant .All contact was via a “voluminous “collection of emails which sometimes ran to hundreds of pages submitted over the 24 hours of a day.

The respondent contended that every effort was made by PB2 to accommodate the complainant’s requests .They strongly rebutted any discrimination on grounds of race, religion or victimisation.

The respondent was aware that an ES1 had been submitted on 27 November 2015 and further clarification was sought by PB2 on 18 January 2016 seeking a determination for the basis of the complaint and a clarification on which of the nine grounds he was relying on?

On 17 May, the respondent PB2 wrote to the WRC:

“If we take it that the complainant considers that the PB2 erred in either the decisions reached or in the manner in which those decisions were arrived at, he ought to have directed his request for a review to the High Court “

On 19 July, the respondent wrote to the WRC submitting a lack of clarity in relation to the complaint made by the complainant and re-affirming that if the complainant was unhappy with the decision of PB2 then the correct avenue of redress was via the High Court.

The respondent position was summarised as they had done all in their power to assist the complainant in the processing of his complaints to PB2 and discrimination was denied. In response to a question tabled by the Adjudication Officer, the respondent was opposed to any extension on the statutory time limits.

Decision:

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

Section 25 of the Equal Status Act, 2000-2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Preliminary Issue –Time Limits

I have read the entire file in this case which currently runs at almost 800 pages. Some of which have been duplicated and the complainant’s documents are of polemic proportions. The respondent confined their response to a verbal submission, a copy of the ES1 notification; copies of letters which collectively sought repeated clarification on the complainant’s intentions, which they submitted were not understood by them. I found a large part of the complainant’s written submission to be incomprehensible and totally tangental to the key point of a complaint made under the Equal Status Acts.

I would have liked to have benefitted from an appearance by the complainant at hearing in order to capture oral submissions of his request to extend the time limit. I am satisfied that he was notified and was unable to attend .

On the complaint form received by the WRC on 1 April 2016, the most recent date of discrimination was listed as 1 October, 2015.

Section 21(6) of the Acts requires a complaint to be brought within six months …”from the date of the occurrence of the prohibited conduct to which the case relates or as the case may be, the date of the most recent occurrence”. Thus Section 21 (6) requires that a claim for redress in respect of discrimination be referred within six months from the date of the most recent occurrence. This limitation period may be extended to 12 months where reasonable cause is shown.

From my investigation into the complaints, I note that the complaint was deemed out of time on 15 April by the WRC .They noted that the complaint was compromised by the statutory time limits.

“In accordance with Section 41 of the Workplace Relations Act, 2015, an Adjudication Officer may not entertain a complaint/dispute if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

It would appear from the information submitted by you that these complaints do not fall within the statutory timelines. The 6 month time limit expired 30/09/2015. In the circumstances, your complaints cannot be entertained by an Adjudication Officer.

However, if you consider that your failure to present the complaints within the statutory timelines was due to reasonable cause, you may make a submission accordingly to the Workplace Relations Commission. Any such submission should be presented to the Commission’s Information and Customer Services within 14 days of the date of this letter. Submissions received after that period cannot be considered. “

Your attention is drawn to the Commission's “Procedures in the Investigation and Adjudication of Employment and Equality Complaints” which may be accessed and/or downloaded at www.workplacerelations.ie under Publications and Forms.”

The complainant submitted his request for a relaxation of the time limits and proceeded to augment his submissions on his case up to the date of hearing in August and beyond. I have given consideration to the complainants written pleadings in this regard and I have heard the respondent on their views in regard to an extension of time limits.

The WRC provides a very user friendly guide to filling in the forms to enable a complaint of discrimination under the Equal Status Acts in the provision of goods and services. They require a complainant to send a copy of the ES1 “notification “form outlined in Section 21 (2) (a) in tandem with the letter of complaint. It is clear to me that the respondent received a notification from the complainant on 27 November 2015.However; PB2 required further clarification from the complainant in January 2016. That has fulfilled the complainant’s obligations in that regard.

I did not have access to the ES1 form or a “ notification “ which I could readily identify as comprising of the pre requisites of a notification until some days after the hearing . The reason for this being that the complainants submissions were assembled and submitted to the WRC in an elaborate montage format and I was unable to decipher a mandatory “ notification “ form amongst the voluminous documents .I could not establish the veracity of documents as most importantly I was not in a position to ask the complainant for direct evidence or to observe his response to cross examination on this central time limits issue .The complainant submitted that he had a disability and was not in a position to travel to the hearing , I would have been happy to have had medical collateral on that submission . I did not receive this .

Section 41 of the Workplace Relations Act 2015 provides that a complaint cannot be entertained outside the statutory time limit of 6 months following the alleged contravention save for the “reasonable cause”, 12 month extension.

I have considered the submissions made by the complainant on reasonable cause and I have heard the respondent on the rebuttal.

The seminal decision on this point is that of the High Court in Donal O Donnell and Catherine O Donnell v Dun Laoghaire Corporation [1991] ILRM 30 This involved an extension of time for bringing judicial review proceedings where good reasons prevailed.

The phrase “good reasons “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 t 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 that he or she was justified in delaying the institution of proceedings .What the plaintiff has to show is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

1 From my analysis of the emails submissions and the respondent submission, I can establish that the complainant was engaged in a two year email engagement with PB2 from 2013-2015. This culminated with the decisions of PB2 being communicated to the complainant on October 1, 2015 on his three complaints. I considered a copy of these documents and note that Date of Decision is printed as October 1, 2015. I note in particular that the decision referred to was legally binding and the appeal offered to the complainant was not actioned .

2 I accept that the complainant submitted his intention as permitted in ES1 on 27 November 2015 and further clarifications were exchanged between the parties. It is clear that the complainant had a stated intention to make a complaint under the Equal Status Acts from November 2015.

3 The complainant submitted a 49 page initial complaint , but made an opening remark that the complaint was” due today” 1 April 2016.This demonstrated an awareness of the clock ticking on the claim. He also stated on page 1 that the issues were too complex for him to deal with verbally.

4 The complainant has stated that the allegations are linked and that the prohibited conduct complained of was extended due to the continued publication of the decisions on the PB2 web site.

5 The respondent was opposed to the extension of time limits.

In Ballina more House Nursing Home V Guinan EET 152, 2014, the then Chairman of the Labour Court refused to grant an extension of time on an employment equality claim and determined:

“ Against this background there is nothing in the material before the Court from which it could be held that the factors relied upon in advancing this application either explained the delay or provided a justifiable excuse for the delay “

In the instant case, I find that the complainant did not give due regard for the letter of notification of 15 April from WRC to alert him of the time limit issue. While he did submit a short note seeking an extension of time, he proceeded to submit an extensive montage of documents up until the end of August 2016 without addressing reasons for the delay. As stated previously, I would have liked to met with the complainant. However, I have had to work with the documents placed before me and the respondent submission.

Accordingly, I find that I am guided by the Labour Court in Ballinamore; I cannot establish anything in the material presented to me that either explains the delay or provides a justifiable excuse for that delay.

I find that I cannot, therefore, grant an extension of time in accordance with Section 41(8) of the Workplace Relations Act 2015 and consequently lack the jurisdiction to hear this complaint .

Patsy Doyle , Adjudicator/Equality Officer .

Dated:   16/11/2016