ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016405

Parties:

	Complainant	Respondent
Anonymised Parties	A Minor	A Creche/Pre School Facility

Representatives

Mother of the Complainant

Averil Field, Solicitor of Field Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00021247-001	21/08/2018

Date of Adjudication Hearing: 03/10/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Background:

The issue in contention concerns the alleged discriminatory non-admission of the Complainant to the Pre School operated by the Respondent.

1: Procedure:

In accordance with 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).

2: Naming of Parties

It was discussed and agreed that in any published WRC decisions the names of the parties in this case would be anonymised.

3: Opening Legal and Jurisdictional issue

The Respondent argued that the Complaint was out of time and therefore the Adjudication Officer had no proper jurisdictional basis to hear the case.

3:1 Respondent Arguments -both in Writing and Orally.

The alleged incident of Discrimination took place on a date in early March 2017 - the exact date was unclear, but it was agreed that it had been early March.

Form ES1 was not served on the Respondent until the 16th of April 2018 -clearly outside of the Two Month and Four Month time limits. In addition, the Complaint was not served on the WRC until the 21st August 2018 - some 15 months later and again well outside of the six month and by extension twelve-month time limits laid down in the Legislation.

On these grounds the complaint is well out of time and the Adjudication Officer is precluded from proceeding with the case.

3:2 Complainant Arguments -made largely Orally but supported by Form ES1 and in copy e mails.

The date of the March 2017 incident was accepted. However, the Complainant was in further correspondence a late as February 2018 with a final reply from the Respondent Legal Advisors on the 8th May 2018.

The correspondence was Discriminatory in that it reiterated the March 2017 refusal to admit the Complainant. It failed to give reasons why the additional information provided and suggested in the interim regarding special Supports available to the Complaint were not properly evaluated and why any proper physical evaluation of the Creche /Pre school premises had not been undertaken. It was proof of a continuing “Discriminatory Mindset” on the part of the Respondent.

As such the dates of the March/April 2018 correspondence should be taken as the last date of Discrimination and therefore comprehended by the Time Limits of the Act.

3:3 Adjudicator Conclusions and Decision on the opening Time limits issue.

Section 21 (6) of the Equal Status Act ,2000 provides as follows

(6) ( a ) Subject to subsections (3)(a)(ii) and (7) , a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 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 its most recent occurrence.

In this case the alleged act of Discrimination was in early March 2017 when the Complainant was refused admission to the Childcare Facility.

The Complaint was not filed with the WRC until the 21st August 2018 - clearly over 12 months later.

The Complainant argument that correspondence relating to this event continued until March 2018 and as such was a “Continuing Discrimination” is not , in my view, of sufficient strength to allow for the admission of the complainant. The act of Discrimination happened in March 2017 and subsequent correspondence does not alter this basic fact.

Accordingly, the Complaint must be ruled Out of Time and cannot proceed.

4: Summary of Complainant’s Case:

The Complainant via his Mother had made contact with the Respondent facility in early 2017. The Respondent indicated that a place might be available, and the Complainant accompanied by his mother was invited to visit the Premises. Following or at this visit the Respondent indicated that they did not feel they could accommodate the Complainant in their Facility.

5: Summary of Respondent’s Case:

The Respondent refuted the claim both on the Time Limit grounds as set out above and on the material facts of the case.

6: Findings and Conclusions:

The Complaint is Out of Time. This is discussed at length in Section 3 above.

Accordingly, the Complaint must be deemed not Well Founded and is dismissed.

This is a Technical requirement of the Legislation and there is no possible exemption.

It must be observed that the Complainant was very well served by his mother. Her evidence was compelling and heartfelt. Likewise, the proprietors of the child care facility were equally sincere in their evidence in a most difficult case.

7: Decision:

Section 25 of the Equal Status Acts, 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.

Act	Complaint/Dispute Reference No.	Summary Decision. Please refer to Sections 3 & 6 above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00021247-001	Complaint is Out of Time and accordingly must be deemed Not Well Founded.

Dated: 17th December 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee