Complainant

Respondent

Parties

Adeeb Ur Rehman

Road Safety Authority

Representatives

Aoife McMahon B.L. instructed by the Irish Human Rights and Equality Commission

Des Ryan B.L. instructed by McCann Fitzgerald Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00028025-001

29/04/2019

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

CA-00028026-001

29/04/2019

The Complainant was, at the relevant time, an asylum seeker. He submitted his complaint to the WRC on 29th April 2019 claiming that he was discriminated against by the Respondent on the grounds of race. The Respondent denies the claim.

At the WRC hearing the Complainant made an application to anonymise this decision. Having considered the Complainant’s request I am not satisfied that the Complainant put forward compelling reasons to exercise my discretion to anonymise this decision.

Specific complaint CA-00028026 which was a duplication of CA-00028025 has been amalgamated with CA-00028025.

The Respondent raised a preliminary matter of time limit.

The Respondent submits that it received and processed an application for a learner driver permit from the Complainant on 6th March 2018. While this application did not include satisfactory evidence of normal residence, the Respondent, in error, processed this application and issued the Complainant with a learner permit on 9 March 2018.

The Respondent later received an application for a driving licence from the Complainant on 20th September 2018. The Complainant’s application was rejected on the basis that, in accordance with the requirements of the Guidance Notes and the Regulations, the application failed to include satisfactory evidence of the Complainant’s normal residence in the State.  

The Respondent has corresponded with the Complainant and his representatives on various dates since September 2018 to clarify its requirements regarding evidence of normal residence and to apologise for its error in accepting his previous application for a learner driver permit. During the course of correspondence with the Complainant’s solicitor on 1st February 2019, it was indicated by Mr COF of the Respondent that “At the time of your clients first learner permit application in March of 2018, evidence of residency was not required.” This is inaccurate, insofar as the Respondent has adopted the same position in relation to the documentary requirements regarding normal residence since 2013 when it assumed its driving licencing function.

The Respondent on various dates indicated to the Complainant and his representatives that the requirements for evidence of normal residence are currently under review by the Department for Transport, Tourism and Sport and are the subject of proceedings before both the High Court and the WRC. The Respondent also stated to the Complainant that it would refund his application fee in the event that he was unable to provide the documentation sought

Following the rejection of the Complainant’s application, the Complainant later was granted a full licence, having furnished the Respondent with satisfactory evidence of his residency entitlement. The Complainant is, therefore, currently a licenced driver in the State.

FORMS ES.1 AND ES.2

After considerable time had elapsed following the rejection of the Complainant’s application, the Respondent received a Form ES.1 from the Complainant on 9th April 2019. The Complainant states that the refusal to accept his proffered evidence of residency amounts to discrimination on the grounds of race.   He states that the refusal affects his ability to earn a living as well as the cost of insurance and that he invested time, money and effort in seeking to obtain a driving licence following the granting to him, in error, of a learner permit by the Respondent.  

The Respondent prepared a reply in the Form ES.2 dated 7th May 2019. The Respondent in its response stated that its requirement to show evidence of residency entitlement is not discriminatory on the grounds of race and must be satisfied by all applicants for driving permits, irrespective of race.

The Respondent argues that the Complainant had failed to notify the Respondent in writing of the nature of his allegation within two months after the prohibited conduct is alleged to have occurred, as is required by section 21(2)(a) of the Equal Status Acts.  

13.           Section 21(2) of the Equal Status Acts provides 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, and

(b)                 may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

This is, therefore, a precondition to seeking redress under the Equal Status Acts and as such, the failure of the Complainant to make the necessary notification is such as to disentitle him to the relief sought as a preliminary matter.

While section 21(3)(a)(i) of the Equal Status Acts allows the WRC to substitute a period of 4 months for the period of 2 months provided for, this can only be done “for reasonable cause”. It is not credible that the Complainant could have reasonable cause to have prevaricated in lodging the ES.1 form in circumstances where he was engaging in correspondence with the Respondent at all material times regarding the precise matters which are the subject of the within Complaint. Even if such reasonable cause were to be established, the Complainant failed to furnish the ES.1 form to the Respondent even within the extended four-month period.

In a letter to the WRC dated 16th May 2019, the Complainant’s representative states that the most recent date of discrimination given on the Form ES.1 is “an error” and that the date from which the limitation period runs is 4th March 2019, being the date the Respondent last affirmed its position regarding the documentary requirements for evidence of normal residence to the Complainant in writing. There can, however, be no question of a continuing act of discrimination in this case and the last act of alleged discrimination in this case occurred when the Complainant’s application for a driving licence was denied, that is, well outside of the statutory time period.

As the Labour Court stated in Brothers of Charity Services Galway –v- Kieran O’Toole(EDA177), there must be “some reality” to the claim that acts of discrimination actually occurred within the limitation period, otherwise a complainant “could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit”. The attempt by the Complainant to rely upon statements by the Respondent’s agents in correspondence is an attempt to bring his Complaint within the statutory period where it is clearly not so and should not be permitted.

The Respondent argues that the email of 31st October 2018 captures the rationale behind the decision to decline the permit and the Complainant was at that stage both fixed with knowledge and legally represented. The Respondent argues that it is not a matter of repeated behaviour. Rather, it is a matter of implementation of clear guidelines which was clearly communicated to the Complainant on 20th September 2018 and, in an email on 31st October 2018.

If there is no reasonable cause for the Complainant to have failed to furnish the ES.1 to the Respondent within the statutorily mandated timeframe, there are a fortiori no exceptional circumstances which provide a basis on which the WRC can direct that the limitation period in section 21(2) should not apply to the Complainant in accordance with section 21(3)(a)(ii) of the Equal Status Acts, following which the WRC has no jurisdiction in relation to this matter.

Accordingly, it is submitted that the Complaint should be rejected in its entirety for failure to comply with the preconditions enumerated in section 21 of the Equal Status Acts.

In respect of the preliminary matter, the Complainant submits as follows:

Section 21 of the 2000 Act provides that before seeking redress under this section the Complainant 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 the nature of the allegation and his intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act.

On passing his full driving test on 20th September 2018, the Complainant went to a desk of the office of the Respondent and was told orally that he had insufficient documentation. In order to clarify the position, the Complainant engaged in correspondence with the Respondent. On 6th October 2018, he emailed the Respondent setting out the position in writing. On 31st October 2018, the Respondent replied by email. The Complainant engaged the services of a solicitor, who wrote to the Respondent on his behalf. By email of 1st February 2019 and email of 4th March 2019, the Respondent replied to the Complainant’s solicitor’s letter. The Complainant’s ES.1 form is dated 15th March 2019 and was sent to the Respondent on 6th April 2019.

While in the field of employment discrimination, a recent case of A Driver v. A Waste Management Company (ADJ-00002903) approved an earlier case of Campbell Catering Ltd v Rasaq (EED048) in respect of the following principles:

With reference to the specific needs of non-national workers, the Complainant referred to Campbell Catering Ltd v. Rasaq EED048, where the Labour Court stated in the case of disciplinary proceedings, employers have a positive duty to ensure that all workers understand what is alleged against them, the gravity of the alleged misconduct, and the right to mount a full defence, including the right to representation. Special measures may be necessary in the case of non-national workers to ensure that this obligation is fulfilled and that the accused worker fully appreciates the gravity of the situation and is given appropriate facilities and guidance in making a defence. The Complainant contended that he was not afforded this opportunity.

Central to providing a foreign employee and non-native English speaker with a fair procedure is the obligation for an employer to adequately cater for potential language difficulties, particularly in serious issues such as a potential dismissal. Precedent has been set in this regard (e.g. EED048 Campbell Catering Ltd v Rasaq). I therefore find that the Respondent has failed to demonstrate that it sufficiently catered for the potential language difficulties that existed …

In G v. The Department for Social Protection [2015] IEHC 419, at para. 161, O’Malley J. described the Equal Status Act 2000 as a ‘remedial social statute’ requiring liberal interpretation as follows:

…the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.

It is submitted that the ES.1 form was sent to the Respondent within 2 months of the last such occurrence of the Complainant being refused the issue of a driving licence. Given that this is a complex area of law, and that the Complainant is originally from Pakistan, he was entitled to seek the assistance of a solicitor prior to determining whether to pursue a legal claim. He notified the Respondent within just over one month of his solicitor being given full reasons for the decision to refuse to issue him a full driving licence. The words “the last such occurrence” of section 21 should be interpreted broadly and liberally and in the Complainant’s favour in light of all the above circumstances of his case.

The Complainant’s representative argued that he should not be prejudiced as a foreign national and an asylum seeker. It was argued that the date of the email of 4th March 2019 clarifying that there is no appeal mechanism should be considered as the date last occurrence of discrimination. On that basis, the Complainant is not seeking an extension.

In respect of the preliminary matter I find as follows:

Section 21 of the Act stipulates: “(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, and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(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.”

In the initial WRC complaint form dated 29th April 2019, the Complainant stated that the date of the first incident of discrimination is 20th September 2018 and the most recent date of discrimination is 31st October 2018.

The Complainant’s representative subsequently wrote to the WRC on 16th May 2019 stating that the most recent date of discrimination of 31st October 2018 was given in error. It was argued that the Respondent continued to correspond with the Complainant and “to deny him a driver licence after 31/10/2018.” It was alleged that an Assistant Principal Officer with the Respondent wrote to the Complainant’s (then) solicitor by email dated 4th March 2019 and affirmed the Respondent’s position to refuse the Complainant a driving licence. Therefore, it was argued that the most recent date of discrimination is 4th March 2019. Although, the Complainant’s representative in the letter argued that the ES.1 form was sent to the Respondent on 15th March 2019, it was confirmed at the hearing that the form was, in fact, sent on 6th April 2019.

The Respondent argued that there is no question of a continuing act of discrimination in this case. It was argued that the last act of alleged discrimination occurred when the Complainant’s application for a driving licence was denied, that is, well outside of the statutory time period.

The Complainant argued that what was in issue in the herein case is continuing discrimination that subsisted up to 4th March 2019 when the Complainant’s solicitor was ‘given full reasons for the decision to refuse to issue him a full driving licence’.

The matter for me to decide therefore is whether or not the correspondence the parties engaged in between 20th September 2018 and 4th March 2019 constitutes a continuum of discrimination and whether the email of 4th March 2019 can be considered the last date of discrimination.

It was not in dispute that on 20th September 2018, the Complainant applied for a driving licence. On that date he received an application rejection document confirming that his “application has been refused due to Missing Document(s)” and listed ‘Valid Evidence of Residency Entitlement’ as the relevant document.  

On 6th October 2018, the Complainant emailed the Respondent outlining his circumstances and requesting help to resolve the matter. He received a response signed by Mr C on 8th October 2018 confirming that his query ‘was escalated to the relevant department who would revert to you in due course’. The Complainant emailed the Respondent on 15th October 2018 noting that he was ‘anxiously waiting for your reply’.

On 31st October 2018, Ms D of the Respondent emailed the Complainant clarifying:

“A person wishing to apply for a learner permit or driving licence in Ireland, including the renewal of same, who is not a national of the European Union, European Economic Area or Switzerland must submit their certificate of registration from the Garda National Immigration Bureau (GNIB card) or Irish residence permit (IRP) with their application.

If you are not a national of the European Union, European Economic Area or Switzerland, [the Respondent] will not be able to accept your application for a driving licence unless it is accompanied by a current GNIB card or IRP.”

Ms D informed the Complainant that “…this matter is currently under review by the Department of Transport, Tourism and Sport but it is not possible for me to say when this review will be concluded or what the outcome of it will be. Any changes to the current requirements will be updated on our website…”

The letter continues to say:

“The certificate of competency which a driver is given on passing a driving test is valid for submission with an application for a driving licence within two years of the date it was issued. In the event that you are not able to make an application for a driving licence within this time, [the Respondent] is agreeable to refunding you the driving test application fee.”

The Complainant confirmed at the hearing that at this juncture he had engaged a solicitor and had the benefit of legal advice.

On 18th December 2018, the Complainant emailed Ms D inquiring if there “…is any information regarding this matter because I am waiting for review to happen for a long time”. At the hearing the Complainant confirmed that by “review” he meant the ongoing review by the Department of Transport, Tourism and Sport. Ms D replied on 18th January 2019 informing the Complainant that there has been no further update to the situation as set out in her email of 31st October 2018.

In or around 28th January 2019, the Complainant’s solicitor emailed the Respondent asking for “the precise reason” the Complainant was not issued with the licence. The Respondent replied on 1st February 2019 explaining again that, as the Complainant did not have a valid evidence of residency document, the Respondent is unable to process his application. It was accepted by the Respondent that the email incorrectly noted that “At the time of your clients first learner permit application in March of 2018, evidence of residency was not required.” The Respondent confirmed that the learner permit was granted to the Complainant in error.

On 6th February 2019, the Complainant’s solicitor emailed the Respondent informing that the Complainant’s application for a GNIB card has not been completed and he cannot provide the documents required. In the email, the solicitor inquired about the appeals procedure.

On 11th February 2019, the Respondent replied reiterating its position in respect of the documents accepted as a proof of residency in the state. The Respondent advised that the Complainant can make an official complaint if he wishes to do so. The Respondent informed the solicitor that there is no current appeals process in place.

On 4th March 2019, Ms M, Assistant Principal of the Respondent emailed the Complainant’s solicitor stating that “As we had previously advised your client…” and again outlining the requirements in respect of the certificate of registration from the GNIB or Irish Residence Permit (IRP). Ms M reiterated that the issuing of a learner permit in March 2018 was an error on the part of the Respondent. Ms M, again, offered the Complainant the refund of the driving test application fee paid.

The Complainant’s solicitor replied on the same day advising that the Complainant does not have a certificate of registration with GNIB and he wishes to appeal the decision not to issue him with a full licence. Ms M replied on 19th March 2019 informing the Complainant’s solicitor that “Where a driver does not meet the requirements of the licensing process, [the Respondent] cannot accept an application from them.” Ms M informed the Complainant’s solicitor, again, that there is no appeals process.

On 3rd April 2019 the Complainant contacted the Irish Human Rights and Equality Commission and the ES.1 was sent to the Respondent on his behalf on 6th April 2019. Subsequently, on 29th April 2019, the complaint was referred to the WRC.

In respect of the Complainant’s reliance on A Driver v. A Waste Management Company and Campbell Catering Ltd v Rasaq and the assertion that special measures may be necessary in terms of the Complainant being non-native English speaker, while it is not my role to assess the Complainant’s proficiency in English language, I find that there is no reason to believe that the Complainant’s command of English was insufficient to deal with the matter. The Complainant actively participated in the adjudication hearing. His command of English was sufficient to pass his driving tests and deal with any paperwork involved, he set up and is running his own business, and he engaged in correspondence with the Respondent.

Moreover, I find that as far back as from the end of October 2018, the Complainant has had the benefit of legal advice.

Having considered the submissions of the parties in the instant case, I cannot accept that, following the initial decision to reject the Complainant’s application, there was any kind of reconsideration of the decision or the process. The correspondence that followed merely provided clarity on the matters raised by the Complainant and reiterated the Respondent’s position.

Therefore, I am satisfied that no further decision was made after 20th September 2018, and on 4th March 2019 in particular which would constitute an act of discrimination. I find that the Complainant cannot circumvent the time limits set out in the Act by seeking to rely on an exchange of correspondence that in no way prevented him from initiating his complaint within the statutory time limit.

Consequently, I find that the notification ES.1 which was sent to the Respondent on 6th April 2019 was issued outside the two-month statutory time limit required under Section 21(2)(a) of the Acts and outside the four-month period for which time could be extended under Section 21(3)(a) of the Acts.

I find that the Complainant has failed to comply with the notification provisions of Section 21 of the Equal Status Acts in relation to the time limits and I have no jurisdiction to investigate the complaint.

For the reasons set out above, I find that I have no jurisdiction to investigate the complaint.

Equal Status Acts- race- asylum seeker- driving licence