Complainant

Respondent

Anonymised Parties

A Member of the Traveller Community

A Hotel

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00004472-001

13/05/2016

The complainant is a member of the Traveller community.

Her complaint relates to alleged discriminatory treatment in relation to the provision of services at a hotel.

The complainant was attending a family funeral in the area and she and her sister had pre-booked a bedroom in the respondent hotel. (The complainant’s home was approximately one hundred kilometres from the town in which the hotel was located and the funeral was taking place).

On the night before the funeral (September 2^nd, 2015) she called to the hotel with her sister to collect her key and, in the course of doing so told the receptionist the nature of her visit to the town.

They returned sometime between eight and nine in the evening to find the main door of the hotel locked and they experienced difficulty in gaining admission. Her sister was questioned by a porter about what her business was with the hotel.

The complainant then left with her sister to get something to eat and returned around midnight, to discover again that the front door of the hotel was locked and she had to negotiate admission.

She was denied admission to the Resident’s bar which was clearly still open (it was about 12.30am at this stage). When she attempted to check or enter the bar she was physically prevented from doing so by the staff member stretching out his arms in a blocking action. However, she could clearly hear voices and activity in the bar.

A short time later the complainant’s husband also returned to the hotel and he give direct evidence to the hearing. Assuming his wife to be in the Resident’s Bar he too sought admission to the bar and was refused. He described himself as an infrequent drinker and was in no way under the influence of alcohol on the evening in question.

The following morning the complainant and her sister raised with the receptionist whether the Residents’ Bar would normally be closed at 12.30. She confirmed that it would not. She also promised that a member of the management team would contact her within a few days but this did not happen.

In due course she decided to make a complaint under the Equal Status Act and sent the required notification to the respondent on October 14^th. The respondent replied through an agent promising to investigate the incident.

However, it did not do so and the complainant heard nothing further in response.

The complaint under the Act was not submitted until May 13^th 2016 and the complainant attributes the delay in doing so to the misrepresentation by the respondent of its intention to investigate the matter and then failing to do so.

The complainant submits that this brings the complaint within the time limits as provided for in Section 21 (7) of the Equal Status Act.

The respondent did not attend the hearing and no explanation was provided for the failure to do so.

As will be clear from the narrative above the complaint was received by the WRC on May 13^th 2016, a little over two months outside the deadline for the submission of complaints.

There are a number of provisions in the Equal Status Act relating to time limits.

The first is in Section 21 (2) (a) requiring a person seeking redress to notify the respondent of the complaint within two months. The complainant in this case complied with that requirement.

Next, there is the provision, standard in employment rights statutes, that a claim for redress may not be referred ‘after the end of a period of six months from the date of the occurrence of the prohibited conduct’. (Section 21(6) (a).

However, the complainant in this case relied on a further provision in the Equal Status Act (Section 21 (7) which is as follows;

Where a delay by a complainant in referring a case under this section is due to any misrepresentation by the respondent, subsection 6(a) shall apply as if the reference to the date of the occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

It is the complainant’s case that the letter of October 14^th 2015 from the respondent’s agent offering to conduct an investigation was such a ‘misrepresentation’ and that this brings the complaint within the time limits as the complaint was submitted on May 13^th.

It is true that it would do so if the action by the respondent could be construed as a ‘misrepresentation’.

The provisions of the Act require a two stage test.

The first is whether the respondent’s actions meet the definition of ‘a misrepresentation’.

The second is whether the delay is ‘due to’ any misrepresentation.

Looking at this second test first, the question that must be answered is whether there was anything in the respondent’s failure to reply to the complainant which prevented the submission of the complaint to the WRC.

In fact, there was no obligation on the complainant to await the outcome of the proposed investigation, nor any aspect of any likely outcome of such an investigation that was necessary for the submission of their complaint.

The only obligation which falls on a complainant in Section 21 of the Equal Status Act is to notify a respondent. There is no requirement to await a response or the outcome of any investigation such as was promised in this case.

It may assist also to look to the Labour Court for guidance as it has considered this aspect of time limits on more than one occasion.

In relation to the test applied in extension of time applications under the Acts, the most commonly cited dicta are those of the Labour Court in Department of Finance v IMPACT. [2005] E.L.R. 6.

In considering the criterion to be applied as to whether reasonable cause exists, the Labour Court said it was for the applicant to show that there were reasons which both explain the delay and which afford an excuse for it. This imports a clear objective standard into the test. The Court continued:

“The Court must also be satisfied that the explanation offered is reasonable, that is to say, it must be agreeable to reason and not be irrational or absurd. This is essentially a question of fact and degree to be decided by applying common sense and normally accepted standards of reasonableness. The standard is an objective one but it must be applied to the facts known to the applicants at the material time.

While it is not expressly provided in the Act, it seems explicit that even where reasonable cause is shown the Court should go on to consider if there are any countervailing factors which would make it unjust to enlarge the time limit. These factors would include … the degree of prejudice which may have been suffered by the respondent (or third parties) in consequence of the delay, the length of the delay, whether the applicant has been guilty of culpable delay and whether the applicant has a good arguable case on its merits.”

It will be seen here that there is a two step test; the action or omission must both explain AND provide an excuse for the failure to submit the complaint.

The question in this case is whether the failure of the respondent to act on its undertaking in any way prevented the submission of the complaint and I must conclude that it did not. In that sense even if the actions of the respondent could be made to fit a definition of misrepresentation I cannot conclude that the delay was ‘due to’ that action or failure to act, or alleged ‘misrepresentation’.

It does mean that complainants need to be vigilant and alert to possible attempts to derail their complaint and their right to a hearing by such tactics, but ultimately an obligation falls on a complainant to do so as statutory time limits must be fully respected.

For the reasons outlined in detail above I do not uphold CA-00004472-001 as the complaint was not made within the statutory time limits and it is dismissed.

Equal Status Act, Time limits, misrepresentation