ADJ-00015889

Complainant

Respondent

Parties

Paul Maguire

Brú Na bhFiann

Complainant

Respondent

Anonymised Parties

Service user

Accommodation Provider

Act

Complaint Reference No.

Date of Receipt

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

CA-00018760-001

03/04/2018

The Respondent is a charity which provides accommodation for homeless former military service personnel.   Occasionally the Respondent provides short-term accommodation to eligible current and former military service personnel who are not homeless. The Respondent does not provide accommodation to the general public.

The Complainant, who is a former member of the reserve defence forces, submits that the Respondent discriminated against him on the grounds of gender when he sought to book an overnight stay in their accommodation in July 2017.

The Respondent rejects the complaint.

The Respondent submits that the Complainant failed to issue the required statutory notice to them as required under Section 21(2) of the Equal Status Acts, 2000-2015.

The Respondent submits that they only received the required notification from the Complainant on 9 April 2018, approximately nine months after the alleged discrimination had occurred and six days after the complainant had submitted a complaint to the WRC.

The Respondent asserts, therefore, that the complaint should be dismissed on the basis of the Complainant’s failure to comply with the requirements of Section 21(2) of the Acts.

The Complainant submits that he was unclear as to whom he should submit his complaint and, therefore, he made contact with the Office of the Minister with Responsibility for Defence on 14 September 2017.

The Complainant submits that the Office of the Minister responded by letter dated 10 October 2017 to say that the Minister does not have any role in or responsibility for the operation of the Respondent’s accommodation facility and suggesting that the Complainant contact a named individual within the Respondent organisation.

The Complainant submits that he was unhappy with the Minister’s Office’s response and that he did not wish to contact the individual named by the Minister’s office.  

The Complainant submits that he engaged further with the Minister’s office in an effort to ascertain the identity of the Legal Secretary of the Organisation.

The Complainant submits that he received a response from the Minister’s Office on 14 December 2017 to say that neither the Minister nor the Department have the details of the name of the Legal Secretary of the Respondent.

The Complainant submits that he was unhappy with this response and sought the information from the Minister’s Office under Freedom of Information.

The Complainant submits that on 9 February 2018, the Minister’s Office provided him with the name of the Company Secretary of the Respondent organisation.

The Complainant submits that on 9 November he had already sent correspondence for the attention of the Respondent’s legal secretary but that he had not received an acknowledgement or a response to his correspondence.

The Complainant submits that the matter dragged on and in an attempt to resolve the issue, he wrote to the Office of An Taoiseach on 24 January 2018. The Complainant submits that the Office of An Taoiseach forwarded his correspondence to the Minister for Defence.

The Complainant submits that he wrote again to the Respondent on 28 February 2018 and put them on notice that, in the absence of a response, he would refer a complaint under the Equal Status Acts to the WRC.

The Complainant submits that he submitted an ES.1 form to the Respondent on 9 April 2018.

The Complainant submits that the process of communicating with both the Departments of An Taoiseach and Defence caused a delay in him issuing an ES.1 form to the Respondent.

The Complainant submits that he also communicated with the Director of the Office of Corporate Enforcement about his complaint.

Before deciding on the substantive issue, I must first decide whether the Complainant complied with the notification requirements set out in Section 21 of the Equal Status Acts as follows:

(2) Before seeking redress under this section the complainant —

( a ) shall, within 2 months after the prohibited conducted 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, …

… (3) ( a ) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may —

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

  ( b ) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevantcircumstances, including —

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent ’ s ability to deal adequately with the complaint.

I note the Complainant’s submission that he was unclear regarding the correct identity of the Respondent and that he wrote to the Office of the Minister with Responsibility for Defence on 14 September 2017 seeking assistance.

Furthermore, I note that the Office of the Minister with Responsibility for Defence responded to the Complainant on 10 October 2017 to say that the Minister does not have any role in or responsibility for the operation of the Respondent’s accommodation facility and suggesting that the Complainant contact a named individual within the Respondent organisation.

I note, however, that the Complainant did not act on the Minister’s Office suggestion. Instead, he continued to communicate with the Office of the Minister on the matter.

I note that the Complainant also engaged in communication with the Office of An Taoiseach and the Director of Corporate Enforcement in an effort to resolve his complaint.

I note that the Complainant wrote to the Respondent on 19 November 2017 in relation to his complaint. I find, however, that in his letter to the Respondent the Complainant did not particularise any incident of prohibited conduct nor did he indicate his intention, if not satisfied with the Respondent’s response to the allegation, to seek redress under the Equal Status Acts as required under Section 21(2) of the Acts.

I note that the Complainant wrote again to the Respondent on 28 February 2018 to put them on notice that he would refer a complaint to the WRC under the Equal Status Acts unless they responded to his correspondence.   I find that in his letter of 28 February 2018, the Complainant did not particularise any incident of prohibited conduct as required under Section 21(2) of the Acts.

I note that the Complainant submitted an ES.1 to the Respondent on 9 April 2018 – approximately nine months after the occurrence of the alleged prohibited conduct and six days after he had submitted a complaint to the WRC.

In considering this matter, I note that the Complainant advised the hearing that he was familiar with Equal Status legislation both in this jurisdiction and elsewhere.

I find, therefore, that the Complainant has not complied with the notification requirements set out in Section 21(2) of the Acts.

In accordance with Section 21(3)(a)(ii) of the Acts, it is open to the Complainant to seek to have the notification period set aside on the basis of exceptional circumstances. I must be satisfied that the case made is an exceptional one and that it is fair and reasonable to dispense with the notification requirements made by the Acts. In coming to my decision, I am required by Section 21(3)(b) to take into account the extent to which the Respondent is, or is likely to be, aware of the circumstances and the extent of any risk of prejudice to the Respondent’s ability to deal adequately with the complaint.

The Labour Court addressed the issue of exceptional circumstances in its decision, albeit in a case under a different statute, in Gaelscoil Thulach na nOg and Joyce Fitzimons-Markey (EET034) as follows:

“The Court must first consider if the circumstances relied upon by the applicant can be regarded as exceptional. If it answers that question in the affirmative the Court must then go on to consider if those circumstances operated so as to prevent the applicant from lodging her claim in time.

The term exceptional is an ordinary familiar English adjective and not a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course or unusual or special or uncommon. To be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.

In essence, the Complainant is required to persuasively identify a circumstance which is out of the ordinary and which both explains and excuses the delay in notifying the Respondent of the alleged discrimination.  

I find that the Complainant has not identified an exceptional circumstance which would empower me to set aside the notification requirements of the Acts.

Furthermore, I find that the delay in properly notifying the Respondent until after a complaint had been lodged with the WRC prejudiced the Respondent’s ability to communicate with the Complainant with a view to resolving the issue between them without recourse to the WRC.

I find, therefore, that I am not empowered under Section 21(3) of the Acts to accede to the Complainant’s request to dispense with the notification requirement.

Section 21(4) of the Equal Status Acts precludes the WRC from investigating an Equal Status case until one month has elapsed after the Complainant has notified the Respondent as follows:

The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

I find that the Complainant issued the required notification to the Respondent after he had lodged a complaint with the WRC.

Section 21(6)(a) of the Acts provides that a claim for redress under the Acts must be made within a period of six months from the date of the last occurrence of the alleged discrimination. Section 21(6)(b) provides that where reasonable cause is established, the period of six months may be extended to twelve months.  

In summary, the general principles which apply are that something must be advanced which will both explain and excuse the delay. 

The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows; 

“It is the Court's view 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 the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and 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.”

I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for submission of a claim for redress under the Acts.

Taking all of the foregoing into consideration, I find that I have no jurisdiction to investigate this complaint.

In reaching my decision, I have taken into account all of the submissions that were made to me.

In accordance with section 25(4) of the Equal Status Acts, I find that I have no jurisdiction to investigate this matter as the requirements set out in Section 21 of the Acts were not properly complied with.

No compliance with notification requirements