Complainant

Respondent

Parties

Donal Madden

Blackrock Clinic

Representatives

Arthur Cox & Co., Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00025155-001

16/01/2019

The complainant attended at the respondent hospital in June 2018 and says he was refused treatment.

The respondent raises three preliminary matters.

The first is that the complainant failed to comply with the notification requirement within the statutory time limit.

The Equal Status Act at Section 21 (2) requires a complainant to notify the respondent, within two months of the incident of the nature of the allegation and of his intention, if not satisfied with the complainant’s response, to seek redress under the Act.

A complainant may also, under this provision seek additional information from the respondent. There is provision for some extenuating circumstances in Section 21 (3).

The first the respondent knew of the case was when it received a copy of the complainant’s referral of the matter to the WRC which he had done on January 16th 2019, more than seven months after his visit to he hospital.

The second preliminary matter relates to the time limit within which a complainant is required to lodge a complaint with the WRC.

The relevant provision is in section 21 (6) (a) and it requires a case to be referred within six months of the date of the alleged breach of the Act. To have this time limit extended the complainant must establish that there were exceptional reasons for his failure to comply with the notification requirements.

The legal test for this has been formulated by the Labour Court in Cementation Skanska v Carroll DWT 0338 (and is further considered in the Findings and Conclusions).

The final preliminary point arises from the provisions of section 16 of the Act which relate to the exercise of clinical judgement.

In that section it states (subsection (2))

Treating a person differently does not constitute discrimination where the person-

(a)    Is so treated solely in the exercise of clinical judgement in connection with the diagnosis of illness, or his, or her medical treatment.

The complainant wrote to the respondent on June 21st, 2018 by email complaining about his treatment on the day of the alleged breach (June 16th).

At the end of this email he stated;

‘I am notifying you now that I will be filing a discrimination case against the Blackrock Clinic’.

This was within the two-month period required by the Act and complies with the requirement.

The complainant has stated that his reason for not submitting the complaint within the six-month period were that his complaint about his treatment was still with the respondent and that he was waiting a conclusion of that process.

He understood that he was required to exhaust the internal processes with the hospital before referring it to the WRC.

The preliminary issues fall to be dealt with first. In fact, only two of the matters raised are preliminary issues; those relating to the time limits. The third is a response to the substantive complaint.

The first related to the notification requirement which obliges a complainant to notify the respondent, within two months of the incident of the nature of the allegation and of his intention if not satisfied with the complainant’s response to seek redress under the Act.

The complainant has said that his email of June 21st meets this requirement.

The Act requires a complainant to notify the respondent of ‘the nature of the allegation’ and of his ‘intention, if not satisfied with the respondent’s response to the allegations to seek redress under the Act’.

The complainant’s very lengthy email would have left a recipient in little doubt as to ‘the nature of the allegation’.

The complainant’s statement ‘I am notifying you now that I will be filing a discrimination case against the Blackrock Clinic’ does not specifically state that he proposed ‘to seek redress’ under the Equal Status Act, (note, the text in the statute refers to ‘this Act’) .

The WRC ‘Guide to the Equal Status Act’ reaffirms the requirement that the intention ‘to seek a remedy under the Equal Status Acts 2000 to 2015’ and goes on the say ‘Your complaint is not valid unless this is done’.

While some allowance may, in certain circumstances be made for the fact that a complainant is not legally represented or advised it will not stretch to the point of overlooking a statutory requirement stated in such explicit terms to be a pre-condition to the hearing of a complaint.

In any event, his problem with time limits does not end there.

The respondent relied on the well-established principles established in the case of Cementation Skanska v Carroll DWT0338; which set out what might be described as the ‘explain and excuse’ test to ground an application for extending the period within which a complaint may be made beyond six months.

In that case the Court said;

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.

The complainant said that he was awaiting the outcome of his engagement with the respondent before submitting his complaint, and that this was the reason it was delayed.

In my view, this comes nowhere near meeting either of the elements of the ‘explain and excuse’ test. In particular, there was nothing in that engagement with the respondent; no fact, or piece of information that was material to the making of the complaint, nor had anything new materialised to enable him to make the complaint when he actually did so.

Indeed, while the email of June 21st on which he relied contain a large number of questions for the hospital it also stated in relation to them; ‘Not that I need the answers to these questions’.

He could easily have submitted the statutory complaint to the WRC and continued his engagement with the respondent with the option of withdrawing the complaint if he was so minded on the basis of whatever might have emerged.

His failure to do so was attributable to his decision making, and not to some external factor over which he had no control.

Accordingly, I find that the complainant has failed to comply with the statutory requirements in respect of both the notification requirements (Section 21 (2)) and in respect of the submission of the complaint (Section 21(6) and his complaint therefore is not within jurisdiction and it falls.

For the reasons set out above I do not uphold complaint CA-00025155-001 and it is dismissed.

Time limits