Complainant

Respondent

Parties

Ciara Kennedy

The Ballsbridge Hotel

Representatives

In person

Mairead McKenna B.L. instructed by Shaffrey & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031096-001

24/09/2019

The complaint was submitted to the Workplace Relations Commission (WRC) on 24th September 2019 in relation to an incident that occurred on the 20th June 2019 when the complainant sought to check in to the Hotel. The complainant had previously submitted an ES1 form to the Hotel by Courier on 21st August 2019 in accordance with the Equal Status Act, 2000.

The complaint relates to allegations of discrimination in the provision of goods, services and accommodation on the Gender, Sexual Orientation and Disability grounds. The complaint also alleges Harassment, Sexual Harassment and a further complaint that the respondent failed to provide reasonable accommodation to her as a person with a disability.

The complaints were acknowledged by the WRC on 30th September 2019. The complainant was informed that her ES1 form had been submitted to the respondent on 21st August 2019 which was one day outside of the 2-month time limit provided by the legislation.

Naming of the parties

The parties to this complaint are being named as is the practice of the WRC in such complaints.

The complainant sought an extension of time on the basis that she was not aware that submitting the ES1 form to the Hotel exactly two months to the day after the alleged incident was in fact one day out of time. The complainant stated that the delay in submitting the ES1 form to the Hotel occurred as a result of a misunderstanding on her part in relation to the calculation of time limits. The complainant also stated that the death of a close friend in the USA, his repatriation to Ireland and funeral in Co Donegal, as well as the fact that she was grieving and was also hosting the deceased’s wife for a number of weeks after the funeral resulted in the delay in submitting the form to the respondent.

The respondent stated that the extension of time should not be granted on the basis that the complainant has not satisfied the appropriate legal test which explains and excuses the delay in submitting the ES1 form to the Hotel. On that basis the respondent contends that the complaint should be deemed out of time.

The complainant sought an extension of time on the basis that the ES1 form was submitted to the Hotel one day outside of the time limit provided by the Equal Status Act, 2000.

Time Limits

Section 21(2) of the Equal Status Act, 2000 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 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.

Section 18(h) of the Interpretation Act 2005, which deals with the interpretation of periods of time which are set down in legislation, provides that:

“Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall be deemed to be included in the period and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall be deemed to be included in the period;”

In the High Court case Bank of Scotland (Ireland) Ltd v Employment Appeals Tribunal [2003] 8 ICLMD 33, Ó Caoimh J, helpfully explained that, in accordance with Section 11 of the Interpretation Act 1937 (replaced by Section 18(h) of the Interpretation Act 2005), a period of six months beginning on the 31st July 2000 had expired on 30th January 2001.   Applying this to the instant case, the 2-month period within which the complainant should have submitted the ES1 form to the Hotel expired on the 20th August 2019.

The ES1 form was delivered by hand to the respondent on 21st August 2019. The complainant was under the impression that this was within time as the incidents complained of occurred on 20th/21st June 2019. When the complaint was submitted to the WRC on 24th September 2019, it was acknowledged on 30th September 2019 and the complainant was informed that the ES1 form had not been submitted to the respondent within the 2-month time limit required by the legislation. The complainant was advised that she could seek an extension of time in those circumstances.

In correspondence to the WRC on 13th October 2019, the complainant sought an extension of time on the basis that she had been unaware that she was one day late in submitting her ES1 form to the Hotel. The complainant, in her correspondence, outlined that she fully accepted responsibility for the delay in submitting the ES1 form to the Hotel but that she was not clear in her understanding of the relevant time limits. She also stated that following the death and funeral of a close friend, she was extremely stressed and asked that this be taken into account in considering her request to extend time.

At the adjudication hearing on 13th August 2020, the complainant outlined that the incident occurred in the Hotel on the night of the 20th June 2019 after she had returned from her friend’s funeral in Co Donegal. The complainant’s application for an extension of time was based on the fact that she was extremely stressed, was grieving the loss of her friend and was hosting the wife of the deceased for a number of weeks after the funeral had taken place.

Extension of Time – Reasonable Cause

The applicable test in relation to establishing if reasonable cause has been shown for the purposes of granting an extension of time is that formulated by the Labour Court in the case of Cementation Skanska v Carroll, (DWT 38/2003) as follows; 

“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.”

In the instant case, it is the 2-month period that is relevant. The complainant stated that the delay in her submitting the ES1 form to the Hotel was as a result of the grief she was experiencing after the death of her friend and the fact that she was hosting the deceased’s wife for a number of weeks after the funeral had taken place on or about 19th June 2019.

I have given great consideration to the request for an extension of time and I note the ES1 form and the comprehensive letter attached which the complainant arranged to have hand delivered to the respondent on 21st August 2019 which was only one day outside of the 2-month period.

In an email to the WRC on 13th October 2019, the complainant stated inter alia that she had misunderstood the time limit for submitting the ES1 form as it was unclear to her. On this point I note the Labour Court Determination in Globe Technical Services Limited and Kristin Miller (UD/17/177), wherein the Court found that ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form: The Determination stated as follows:

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

Having considered all of the information put forward by the complainant in applying for an extension of time, I find on balance that the reasons advanced by the complainant, while they explain the delay up to a point, do not in my view offer an excuse for the delay. While the complainant was obviously grieving the loss of her friend and hosting the wife of the deceased for a number of weeks after the funeral, it is more likely, in my view, and as initially acknowledged by the complainant herself, that she miscalculated and/or was unsure of the time limits which ultimately resulted in the ES1 form being submitted to the Hotel outside of the statutory time limit.

In all of the circumstances of this complaint, I find that the complainant has not satisfied the reasonable cause test and I do not grant the extension of time sought.

Having considered the submissions of both parties, I find that the complaint is out of time and is therefore statute barred.

Complaint out of time