Complainant

Respondent

Anonymised Parties

Kathleen Quilligan

Alan Skehan & Dunmore East Holiday Park Ltd

Act

Complaints Reference No.

Date of Receipt

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

CA-00011320-001

12/05/2017

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

CA-00011956-001

12/05/2017

The complainant is a member of the Traveller Community and she alleges discriminatory treatment by the respondent in relation to a refusal of a service that it provides.

The respondent refutes the complainant’s claims of discriminatory treatment. It claims that the complainant and her husband were refused entry into the holiday caravan park due to their poor behaviour on the day in question.

A brief summary of the complainant’s evidence is as follows; the complainant claims that she and her husband had lawfully booked a berth and paid for it to facilitate their car and caravan to take up a position at the respondent’s holiday caravan park on 30 September 2016. The complainant’s husband and a family friend had attended at the reception of the caravan park at around 2pm on the day in question and received a fob to facilitate their entry into the park complex at a later time that day.

She said that when they returned later to access the caravan park with their caravans, somewhere between 4pm and 5pm, they found the entrance into the caravan park was blocked by a tractor parked across the road way and there were a number of men standing close by. She claims that they were told by one of the men present that the booking was taken in error, it was a mistake and the caravan park was overbooked. The complainant claims that an argument ensued and the Gardaí were called. She claimed that she did not get access to use that facility on the day and claims that it was because they were members of the Traveller Community.

A brief summary of the respondent’s evidence is as follows; Mr Alan Skehan for the respondent said that on the day in question his staff were informed by a number of customers on the caravan park that two men claiming to be workmen had approached them and asked for a loan of their access fobs for the site; they claim that the men said that they were doing work on the site and needed to borrow the access fobs to go in and out of the site. The respondent’s staff raised the alarm with Mr Alan Skehan that there was a potential problem as there were no workmen scheduled to be on site and this could have possible security implications. It transpired that the men were identified as having just booked a berth on the site and were given an access fob and were to return later with their caravans.

Mr Skehan and his staff were concerned and decided to block the entrance of the site and carefully monitor who was trying to access the site for the rest of the day. When the complainant, her husband and a number of their personal friends returned to the caravan site that evening the staff of the respondent sought to speak with the complainant’s husband and the other men accompanying them in relation to the earlier incident on the caravan park posing as workmen. The respondent claims that the complainant’s group went out of control and started shouting and threatening the respondent’s staff and the owner himself. Mr Skehan said that there was no chance of a reasonable discussion and he had no option but to call the Gardaí.  

The complainant’s solicitor stated that there were two cases here for consideration, the first case is against Mr. Alan Skehan, Director of the Dunmore East Holiday Park Limited in his own right and the second case is against Dunmore East Holiday Park Limited.

The complainant’s solicitor, in response to a preliminary matter raised by the respondent in relation to missing the 6-month time limits to file the complaints with the Workplace Relations Commission, claims that the complainant was generally living abroad in the UK after the incident and was travelling with her husband from town to town living in a caravan. Also, she claims that she has limited literacy skills, that she can read a little but she described herself as a “poor scholar”. She claims that she was away from her legal representative and would be incapable of preparing the necessary legal documents without his help. The complainant stated that this was the reason for the delay in lodging the complaints with the Workplace Relations Commission. She claims that this warranted an extension in the required time limits to lodge the complaints.

At the outset of the Hearing the respondent’s solicitor raised a preliminary matter as to the time limits within which the complaints were lodged with the Workplace Relations Commission. The legal representative said that the complaint originates from an alleged incident dated 30 September 2016. Notification of the complaint was sent to the respondent within the prescribed time limit under the Equal Status Act. However, the complaints should have been received with the Workplace Relations Commission within 6 months from the date of the complaint. However, they were not received for a full 7 months and 8 days after the alleged complaint and therefore were out of time.

The respondent claims that the complainant living outside of the State and travelling from town to town was nothing new or exceptional, as this was her usual circumstance. The respondent claims that she was able to engage with her solicitor to manage to send the notification of the complaints to the respondent within the 2-month time limit and could surely have met the 6-month time limits for lodging the complaints with the Workplace Relations Commission. The respondent claims that she failed to do so and that there was no “exceptional circumstances” as provided for under Section 21(7) of the Equal Status Act 2000.

Preliminary Matters

Vicarious liability

In relation to the first preliminary point, I have noted that the complainant’s legal representative has suggested that there are two cases here for consideration, one against Mr. Alan Skehan, Director of the Dunmore East Holiday Park Limited and the second case against Dunmore East Holiday Park Limited.

I note Section 42 of the Equal Status Acts 2000 -2015 in relation to the legal concept of Vicarious liability, where it provides,

42. — (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’ s employer, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee —

(a) from doing that act, or

(b) from doing in the course of his or her employment acts of that description.

I am satisfied that Mr. Alan Skehan was working on the premises on the day of the alleged incident in question. I am satisfied that he was not acting in a personal capacity but rather as an employee of Dunmore East Holiday Park Limited. Accordingly, I am satisfied that the principle of Vicarious liability is applicable in this case and I have conjoined the two cases as set out above under the heading “procedure”.

Time limits

In relation to the second preliminary point in relation to time limits I note that there are a number of provisions in the Equal Status Acts 2000 -2015 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.

The next step in the process relates to the provision set out in Section 21(6)(a) namely, 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’. It is obvious from a simple examination of the relevant dates that the complainant is well outside that statutory time limit to bring the complaint. However, the complainant in this case relied on a further provision in the Equal Status Act Section 21(6)(b) which states as follows;

“On application by a complainant the Director of the Workplace Relations or, as the case may be, the Circuit Court 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. [my emphasis added]

It is the complainant’s case that she was living abroad in the UK and had returned there immediately after the alleged incident on 30 September 2016. She claims that she was travelling through-out the UK with her husband from town to town and living in a caravan. She claims that they travel and work together. The complainant’s husband in evidence supported the complainant’s version of events and added that they have a property in Ireland, that they travel here sometimes but do not reside here, and that they usually live in London with family. He also suggested that he is a trader and in cross examination from the respondent’s solicitor accepted that he is a relatively good business man and is well capable of conducting their business affairs in a modern economy. The complainant’s husband also stated that he and his wife have access to an Accountant to assist them look after their business affairs in the UK and have access to legal advice if needs be. Although the complainant claims that she does not have a mobile phone herself, it was noted that the complainant’s husband regularly uses modern technology in daily life.

It was the complainant’s case that as they were away this was the reason for the delay in ensuring that the complaints were lodged in time with the Workplace Relation Commission. Also, a contributory factor was that she has limited literacy skills, she said she “can read a little” but she described herself as a “poor scholar”.   She claims that she was away from her legal representative and would be incapable of preparing the necessary legal documents without his help. She claims that this warranted an extension in the required time limits.

It is the respondent’s position that the complainant has not made out a case for “exceptional circumstances”, as the reasons given are not beyond the norm of her usual life and are no way exceptional by any means.

The requirement to meet a “exceptional circumstances” test originally set out in Section 21(7) of the Equal Status Act 2000, as mentioned by the respondent’s legal representative, has since been replaced by the legislator through amendment to the Equal Status Act by “a reasonable cause” test (see Section 21)6)(b)). This new reasonable cause test is without doubt a less onerous test and threshold for the complainant to pass. Notwithstanding, the question that must be answered is whether the reasons proffered by the complainant are sufficient to warrant reasonable cause within its meaning.

I note that the complainant claims that she and her family left Ireland for the UK practically immediately after the incident on 30 September 2016. However, she did manage to raise concern of the alleged discrimination and get advice from her solicitor to allow for the notification to be sent on to the respondent as per the requirement in Section 21(2)(a) of the Act. I note that the circumstances that pertained at that point, namely living and working in the UK, travelling from town to town with her husband and “being a poor scholar” are one in the same as the conditions that she claim precluded her from sending in the complaint to the Workplace Relations Commission under Section 21(6)(a) within the statutory time limits.

I note that the Labour Court has considered this aspect of reasonable cause and the extension of time limits on more than one occasion. The most commonly cited dicta are those of the Labour Court in the Cementation Skanska case - DWT0425 [2004] and in the 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 suggests a clear objective standard into the test. The Court said in the latter case:

“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.”

The question in this case is whether something prevented the submission of the complaints and I am satisfied and must conclude that it did not. Ultimately, it is clear that the obligation to meet the time limits falls squarely on the complainant. Statutory time limits are an important and fundamental necessity of a proper operational judicial process and are present to create certainty for all parties and must be fully respected. The possibility to extend such time limits is limited to situations where reasonable cause arise and where reasonable cause is shown and when on consideration, as noted above, “countervailing factors … would make it unjust to enlarge the time limit”.

I am satisfied that reasonable cause for the complainant’s failure to meet the statutory time limits to lodge this complaint with the Workplace Relation Commission have simply not been demonstrated in this case. Accordingly, I find that there is no reasonable cause demonstrated for me to grant an extension of the time limits within Section 21(6)(a) of the Equal Status Acts 2000 -2015. 

I find that the two complaints CA-00011320-001 (ADJ-00008630) and CA-00011956-001 (ADJ-00008630) were not made within the statutory time limits under Section 21(6)(a) of the Equal Status Act 2000 -2015. 

I find that there is no reasonable cause for an extension of the time limits under Section 21(6)(b) of the Equal Status Act 2000 - 2015. 

Accordingly, the complaints fail and are dismissed.

Equal Status Acts - statutory time limits - extension of the time limits - no reasonable cause.