ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016632
Parties:
| Complainant | Respondent |
Anonymised Parties | A Parent | A Welfare Agency |
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-00021575-001 | 05/09/2018 |
Date of Adjudication Hearing: 17/06/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
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).
Background:
The issues in contention concern communications between a separated Parent and a Child Welfare Agency. Discrimination on grounds of Gender, Family Status and Other issues were alleged. |
Jurisdictional Opening Issue
The Respondent maintained that there were at all times carrying out their Statutory Duty, as set out in the Child Care Act,1991. The carrying out of an Assessment on a child is not a “service” to the Public , as understood by the Equal Status Act 2000. As such the exemption in Section 14(1) of the Equal status Act, 2000 can relied upon by the Respondent. Relevant section quoted below.
Certain measures or activities not prohibited.
14
14.—(1) Nothing in this Act shall be construed as prohibiting—
( a) the taking of any action that is required by or under—
- any enactment or order of a court,
The carrying out of an Assessment is the implementation of a Legal “enactment” and as such is not within the ambit of the Equals Status Act, 2000.
A number of relevant precedent Cases were cited in support.
Having reviewed these cases ( MQ v Gleeson[1998] 4 IR 85, D v D Dec -S2001-011 and TML v Tusla Dec-S2015-026) and in the light of the particular facts of this complaint I came to the view that the issue in this case was not the carrying out of the Assessment per say ( as governed by Section 3 of the Child Care Act,1991) or any alleged failings therein but rather the communication of details/managing of contacts with the separated Father.
In MQ v Gleeson [1998] 4 IR 85 the question of a Judicial review is suggested as a means of redress in a child welfare case. The Child Welfare Agency is required to conduct a “fair Hearing”. In this case from the evidence presented the Agency carried out its duties professionally albeit with admitted failings in communication with one parent -the Complainant. The communication failings were in essence quite minor in my view and related largely to informing the Complainant of a number of dates and times for meetings with the Children involved. The children were resident with their mother at the relevant times and setting appointments naturally involved her having to make arrangements with schools etc. The Complainant had a full involvement with all the key Agency personnel involved and errors in communicating date/times should not have had any material impact of the outcome of the meetings between the children and Agency personnel.
On balance I did not feel that these issues were sufficient to merit seeking a Judicial Review of the Assessment as is the right of the Complainant. However, the question of the Communication with the Complainant parent as a member of the Public and a citizen could, at a stretch, fall within the ambit of the Equal Status Act, 2000 as a “Customer Care” issue. On this basis I was prepared to allow the case to proceed.
1: Summary of Complainant’s Case:
In October 2017 the Complainant, a separated Father, raised concerns with the Gardai in a Midlands Town regrading the relationship between his children and his former partner’s Father. The issue was referred to the Child Welfare Agency and was passed to an adjacent Leinster area office due to a potential conflict of interest in the Midlands Town. The Complainant alleged that he was never properly communicated with by the Agency in regard to the case and was effectively almost ignored. His input into decisions was not sought in any proper fashion. He alleged that this was due to Discrimination on Family Status Grounds (he was separated) and Gender Grounds – he was a Male. There was an agenda against him probably due to the situation regarding the conflict of interest in the original Midlands town. The children’s maternal Aunt was an employee of the Agency. |
2: Summary of Respondent’s Case:
The Respondent accepted the basic facts/dates times etc of the case as presented. A number of failings in communications with the Respondent were acknowledged. These were largely due to changes/staff turnover in Social Work personnel and generally pressures on the Agency in a period of significant understaffing. The Agency had a number of meetings with the Complainant, significant e mail and postal traffic took place and it could not be said that the involvement of the Complainant was in any way diminished. The question of the potential Conflict of interest in the first Midlands Town was recognised early and the case was moved from the start to another administrative area. There was never any suggestion of a campaign of Discrimination against the Complainant on any of the grounds (Gender/Family/ Civil Status etc) sited. Communications had fallen down on a number of occasions, but this was an administrative issue regrading times and dates of meetings not a case of active or wilful discrimination regarding the substantive matters in the Assessment. In legal Arguments the Respondent pointed out that the primary requirement in a Discrimination case is for the Complainant to establish a prima facie case. This was not evident in this case. |
3: Findings and Conclusions:
3:1 The Legal Position. The requirements in a Discrimination case have by now become the subject of an extensive body of case law. Certain key requirements are now clear – these are principally A): Substantive facts must be advanced, sufficient to allow an inference of discrimination be made – not “mere assumptions”. Once this has been established the Burden of Proof then shifts to the Respondent. The bar is not set high here as regards the Complainant, but speculations and assumptions are generally not accepted. The Labour Court has often ruled on this matter. The decision of the Labour Court in Southern Health Board v Mitchell still remains the leading decision in this area. The Court considered the extent of the evidential burden which a claimant must discharge before a prima facie case of discrimination can be established: “The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the Respondent to prove that there is no infringement of the principle of equal treatment.”
B) Discrimination requires that the Complainant can establish that a person of a different Gender or marital / civil status would, have been treated differently or more favourably. In this case the main allegation was that the “Father” or principal male figure was treated less favourably by the Respondent than the principal female -the children’s mother.
However legal points not withstanding all cases rests on their own evidence and I will now consider this.
3:2 Consideration of the Evidence. There was extensive Oral and voluminous Written evidence presented in this case. Two senior Agency Personnel gave evidence which was open to a full cross examination by the Complainant. Oral evidence was well given and professionally presented by both sides. No suggestion of any deliberate or conscious Discriminatory activity was evident to me although a number of Respondent administrative shortfalls were openly acknowledged and apologised for. Much reference was made by the Complainant to the Children First Guidelines for the Protection and Welfare of Children. He extensively questioned the Agency personnel on all issues of concern to him. The following facts were evident to me from review of the extensive material provided. Shortfalls had taken palce in communicating, with the Complainnat, on a number of occasions regrading dates of Assessment meetings with the Children. The Children’s mother had been communicated with first. The Agency made out that this was unavoidable as the Children were residing with their mother on the dates in question. The Respondent Chief Social Worker, Manager, Ms Xa had met with the Complainnat and had apologised for these shortfalls as administrative mistakes. The Complainant was fully involved, as far as possible, in the entire Assessment process.
A case such as this involving a marital separation where children are involved, and a family law case is running in the background is not a pleasant palce for anyone involved. The letter of the 4th January 2018 from the Social Worker Mr. Xr makes a telling observation regrading the need for the parents to establish means of normal communication in relation to the children’s needs.
The balancing act and diplomatic skills required of a Child Welfare Agency and its staff where parents seem to have a somewhat acrimonious interaction are considerable.
3:3 Final Conclusion
On a most careful consideration I could not see any substantial evidence that would sustain a case of Discrimination on Gender or Marital/Family status grounds. A number of Communication mistakes and missed notifications of children’s meetings are not in themselves evidence of sufficient weight to base this case under the Equal Status Act,2000. I had to come to the conclusion to dismiss the case as legally not well founded. The evidence of Discrimination on the grounds advanced was simply not sufficient.
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4: 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.
Having reviewed all the evidence, both oral and Written, I did not find the case to be Well founded and is dismissed. Administrative errors ,of a relatively minor nature ,are not in themselves evidence of Discrimination sufficient to sustain this case.
Act | Complaint/Dispute Reference No. | Summary Decision |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00021575-001 | Case is not well founded and is dismissed.
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Dated: 24th September 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
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