Complainant

Respondent

Anonymised Parties

Mr. & Mrs. D and their 5 children

A Named Department Official

Representatives

   H R   

 Mark Finan B.L. instructed by the Office of the Chief State Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00013690-001

16/08/2017

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

CA-00013692-001

16/08/2017

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

CA-00013694-001

16/08/2017

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

CA-00013697-001

16/08/2017

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

CA-00013699-001

16/08/2017

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

CA-00013702-001

16/08/2017

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

CA-00013707-001

16/08/2017

These complaints concern seven claims by the complainants Mr. and Mrs. D and their 5 children that they were discriminated against and harassed by the respondent on the grounds of their race (ethnic origins) and membership of the Traveller community in terms of Sections 3 and contrary to Section 5 and Section 11 of the Equal Status Acts in relation to the subtraction of the sum of €40 per week to pay towards homeless provision and the related ‘permission’ form to be signed unread.

The complaint was referred to the WRC under the Equal Status Acts on the 16th of August 2017.   On the Complainant Referral Form the list of complainants were named as Mr. and Mrs. D and their five children and the complaint was referred against a named official who was employed by the Department of  Social Protection at the material time in question.   The details of the complaint referral cite the time period for the alleged discrimination as being ‘summer to mid-winter 2016’. 

In accordance with his powers under Section 25 of the Equal Status Acts, 2000 the Director General delegated the case to me, Orla Jones, an Equality Officer/Adjudication Officer, under Part III of the Equal Status Act, 2000 at which time my investigation commenced.   This adjudication file is made up of seven complaint forms.  In addition, there are fourteen adjudication files associated with these complainants taken against a Government Department and seven named officials of that Government Department giving a total of 98 claims.

Given the large number of related complaints, 98 in total a decision was taken by the WRC to conduct a ‘call over type’ hearing for all of these claims in order to clarify the complaints and to ascertain whether all 98 complaints were to proceed against all 8 named respondents.   This was also an opportunity to clarify any preliminary or jurisdictional issues.   This hearing took place on the 21st of February 2020.    One of the complainants Mrs. D attended the hearing with her representative Ms. R,  Mr. D and the five children were not present on the day of the hearing.   The respondent was also in attendance at the hearing.

The respondent at the hearing raised a jurisdictional issue in respect of the WRC s ability to investigate the within complaints due to their being submitted outside of the time limits provided for under Section 41 of the Workplace Relations Act 2015.

The details of the complaint referral cite the time period for the alleged discrimination as being ‘summer to mid-winter 2016’ and the claim form was submitted to the WRC on the 16th of August 2017.

The respondent in raising this matter referred to a letter issued to the complainants representative by the WRC shortly after the complaint was lodged in August 2017 advising her that these claims appeared to have been referred outside of the time limits specified in Section 41 and asking her to provide ‘reasonable cause’ as to why the complaints had been submitted outside of the time limits.

The letter stated

“It would appear from the information submitted by you that this complaint(s)/dispute(s) does (do) not fall within the statutory timelines. In the circumstances, your complaint(s)/Dispute(s) cannot be entertained by an Adjudication Officer.

However, if you consider that your failure to present the complaint(s)/dispute(s) within the statutory timelines was due to reasonable cause, you may make a submission accordingly to the Workplace Relations Commission. Any such submission should be presented to the Commission’s Information and Customer Services within 14 days of the date of this letter. Submissions received after that period cannot be considered.”

It appears that the complainants did not reply to this letter.   Given the huge volume of claims associated with this matter, this claim and a number of other related complaints (** in total) were put on hold before being scheduled for a call over hearing on 21st of February 2020.

There was some discussion at the hearing as to whether or not the complainants had provided any reply to the letter raising the issue of time limits issued in 2017 and whether they should now be precluded from seeking an extension of time in relation to these claims.   

Having considered the matter and having regard to all of the circumstances, I decided to grant the complainants a period of two weeks to provide me with a submission on ‘reasonable cause’ in support of an application for an extension of time.

The respondent was also provided with an opportunity to reply to this submission after which the complainant was given a further right of reply.   Final correspondence in relation to this matter was received on the 20th of May 2020.

Given that a number of these claims involve minors I have decided to exercise my discretion to anonymise the parties.

Reasonable Cause

Section 41(6) of the Workplace Relations Act 2015 provides that complaints must be submitted before the expiration of six months from the date on which the discrimination occurred. Section 41(8) provides that the six months may be extended to 12 months where the complainant shows “reasonable cause” for the delay:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The well-established test as to what constitutes ‘reasonable cause’ for the purposes of an application for an extension of time is set out in the Labour Court decision in Cementation Skanska -v- A Worker DWT0425 & Department of Finance -v- Impact (2005) ELR 6:

“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 length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Therefore, the onus lies with the Complainant to show that there are reasons which both explain and afford an excuse for the delay.

The complainants representative,  Ms. R, in her submissions in support of an application to extend the time limits for referral of the claims has referred to a variety of issues which she submits prevented her from submitting the claims within the six-month time limit.   The reasons advanced by Ms. R include health issues suffered by the representative herself as well as issues such as the representative having to move house herself.   Ms. R also refers to the large caseload and volume of work which she has undertaken given that she has represented and continues to represent many other traveller families in similar cases.     The respondent in its replying submission disputes that Ms. R s submission which points to imitations on her own time due to her workload, illness, house move and/or preparations for other cases can be accepted as reasonable cause for the delay in submitting the claims.  The respondent also submitted that no reasonable cause has been advanced as to why the complainants themselves failed to submit their claim within time and that no proof of same has been provided.

Ms. R  in reply has  submitted that ‘a lack of confidence or a lack of trust, in one’s own abilities’ by the individual complainants is a further reason for the delay as she states that such a lack of confidence prevented the complainants from pursuing these complaints until such a time as they were represented by Ms. R,  she added that members of the Traveller Community rarely initiate such complaints without ‘representation of some kind’. 

Bearing in mind the fact that these claims relate to allegations of discrimination and harassment alleged to have taken place in summer to mid winter 2016 in respect of which claims were only submitted to the WRC on 16th of August 2017.    In examining the reasons advanced by Ms, R as ‘reasonable cause’ for the delay, I note that most of the medical and personal issues referred to in her submissions occurred after the date of submission of the complaints i.e. post August 2017 and do not explain a delay in submitting a complaint in respect of allegations alleged to have taken place in  ‘summer to mid-Winter 2016’ and which were only submitted to the WRC in August 2017. 

In considering this matter I also note that the delay in question is not one of a few days or weeks but is in fact a delay of a number of months.  The details of the complaint referral cite the time period for the alleged discrimination as being ‘summer to mid-winter 2016’.    Having regard to the length of the delay I am minded of the Labour Court finding that ‘A short delay may require only a slight explanation whereas a long delay may require more cogent reasons’.

While the reasons advanced by Ms. R do have some validity and while I accept that these incidents and issues had they occurred cumulatively during the relevant time period could contribute to some delay in Ms. R submitting the complaints on behalf of the complainants however I do not accept that the reasons advanced and the time period within which these incidents and issues arose amounts to  reasonable cause which both explains and justifies the delay in submitting these claims.

Having regard to the totality of the evidence adduced I am not satisfied that there is a causal link between the circumstances cited and the delay such that as a matter of probability, had those circumstances not been present the complainants would have initiated these complaints in time.   I therefore find that they have  not shown ‘reasonable cause’ for granting an extension of time to refer these complaints.

Section 25(4) of the Equal Status Acts 2000-2015 requires that I make a decision in relation to these complaints in accordance with the relevant provisions of that Act. For the aforesaid reasons, I determine that I do not have jurisdiction to investigate these complaints as they have been referred outside of the six-month statutory time limit and the Complainant has not shown reasonable cause for extending time up until the date of referral.  Accordingly, these complaints do not succeed.