Complainant

Respondent

Anonymised Parties

A Hotel Client

A Hotel Group

Representatives

  Self-Represented

W.B Gavin W.B Gavin & Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00032167-001

05/11/2019

It is alleged that the Respondents discriminated against the Complainant on the grounds of her membership of the Traveller Community contrary to Section (3) (2) 1 of the Equal Status Acts 2000-2012 (also referred to as ‘the Acts’) on the basis “One is a member of the Traveller Community and the other is not (The Traveller Community ground)”.

This complaint was received by the Director General of the Workplace Relations Commission on 5th November 2019.  An ES1 Notification Form pursuant to Section 21(2) of the Equal Status Acts 2000-2012 was sent to the Respondent on October 1st, 2019. 

In accordance with his powers under the Workplace Relations Act 2015, Part III of the Equal Status Acts 2002-2018, the Director General of the Workplace Relations Commission (hereinafter ‘the WRC’) delegated these complaints to me, an Adjudicator for investigation, hearing and decision and for the exercise of other relevant functions of the Director General under Part III of the Equal Status Acts.  As required by Section 25(1) of the Acts and as part of my investigation a hearing of this matter took place on September 2nd, 2019.  The Complainant, who self-represented, attended this hearing and the Respondent was present and was represented by a Solicitor.

The Complainant alleged she was discriminated against when the Respondent took and confirmed a booking from the Complainant for an education related social event in their Hotel and then the Respondent cancelled the booking when they realised the booking related to members of the Traveller Community. The Complaint was submitted to the WRC outside the statutory time limit allowed under Section 21 (2) of the Act and the Complainant made an application under Section 21 (3) (a) of the Act for an extension of time due to “Reasonable Cause”. For the purpose of clarity, no application was made by the Complainant under Section 21 (3) (b) of the Act. The Respondent objected to this extension being granted on the basis there was no “Reasonable Cause” for the delay.

The Complainant booked a Hotel Function Room by Credit Card in the Respondents Group for approximately 50 people and received email confirmation of same on May 31st, 2019.

The Complainant visited the Hotel Function Room by arrangement on June 6th, 2019 and was met by a member of the Hotel staff. A discussion took place regarding the planned Event and the Complainant explained that the Event was for the presentation of Educational Certificates to members of the Traveller Community who had successfully completed a Diploma Course in Community Development. The Complainant stated that the staff member of the Hotel initiated a discussion regarding the bringing in of drinks from outside the premises and the Complainant advised that the people attending the Event would not be bringing in drinks as the Hotel Bar would be open for the Guests to use. The Complainant didn’t like the feeling she got from the discussion but felt the booking was made so everything should be ok. Later that day the Complainant received an email thanking the Complainant for the discussion and that the Hotel staff member would be in touch closer to the date to reconfirm all. A few days later the Complainant received a phone call to say her booking was cancelled as another bigger group had been in touch with the Staff members colleague and the date had been given to them. The Complainant then asked for written confirmation of the cancellation and this was sent by the Hotel on June 18th, 2019 stating the Staff Member colleague had been away on holidays for two weeks and had already been dealing with an enquiry for the date in question, November 9th, 2019.   Neither the Complainant or the Respondent seemed to have engaged to find another suitable date for the event.

The Complainant notified the Respondent of the nature of her allegation on October 1st, 2019. This notification is approximately three and a half months from the date of the alleged discrimination, June 18th, 2019. No response was received from the Respondent within one month. The Complainant lodged her complainant with the WRC on November 5th, 2019 alleging she suffered discrimination on the basis of being a member of the Traveller community.  In the complaint form submitted to the WRC, the Complainant stated that the alleged discrimination took place on June 18th, 2019. The Respondent argued as a preliminary issue at the Hearing that the Adjudication Officer lacked jurisdiction to deal with the substantive complaint as there was no Reasonable Cause to extend the time limit for the acceptance of the complainant. In this respect, Section 21(2) & (3) of the Acts provide for the notification requirements, the extension of time from two months to four months if Reasonable Cause is shown and the dispensation of notification in exceptional cases as follows: “(2) Before seeking redress under this section the complainant- (a) shall, within 2 months after the prohibited conduct 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 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 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.  (b) In deciding whether to give a direction under paragraph (a)(ii) the Director or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including- (i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and (ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.” 

The established test of “Reasonable Cause” was set out in CementationSkanska (Formerly Kvaerner Cementation) v CarrollDetermination WTC0338. The test was set out in the following terms

“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.”

The test formulated in CementationSkanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation[1991] ILRM 30. Here Costello J. stated as follows “The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.”

The issue of Reasonable Cause has been considered in a number of Labour Court cases and the onus is on the Complainant to satisfy the Adjudicating Body of the grounds for Reasonable Cause. In DWT209 the Labour Court concluded as follows “The Court is satisfied that the Complainant’s complaint was presented to the WRC outside of the statutory time limit. The Complainant’s last date in work was 11thJuly 2017. The Court is satisfied that, if there was a contravention of the Act, that date is the last date when such a contravention took place. As the Complainant’s claim was not presented to the Workplace Relations Commission until 10thMay 2018, it was outside of the statutory time limit. It was the Complainant’s submission that the unfortunate sequence of events that befell him prevented him from lodging his claim in time. However, by his own submission those unfortunate events ended when he returned to Australia in January 2018, yet he waited a further four months before he lodged his claim. The Court finds that the reason proffered by the Complainant does not explain the delay, nor does it afford an excuse for the delay. For all the reasons set out above, the Court finds that the complaint under the Act is outside the statutory time limits and therefore must fail. In these circumstances, the Court cannot proceed to hear the substantive matter.”

In UDD213 where the issue of an Application for an extension of time was considered the Labour Court noted  in refusing the application that  “Furthermore, the Court notes that no evidence of the representative’s absence or the dates of such absence have been furnished to the Court.” This is somewhat similar to this case where no documentary evidence was provided by the Complainant to justify her request for an extension for Reasonable Cause.

It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Adjudicator must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in ILRM30, quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.

In the instant case, as the statutory two-month period had elapsed, the Complainant was informed by the WRC on November 19th, 2019, that the complaint was outside the statutory two-month time period and was also informed by the WRC that the Complainant “must now apply to the Director General setting out the reasons such an extension should be granted. Your application setting out the reasons should be forwarded to the Director within fourteen days of the date of this letter. Should a response not be received by the Workplace Relations Commission within that time, the Commission will assume that you no longer wish to proceed with this complaint.” The Complainant was asked to submit her reasons for an extension of the time limit to the WRC within 14 days. The Complainant responded to this request on December 6th stating her reply was past the 14th day timeline but that she had only received the WRC letter on the 14th day. The WRC then organised for a Hearing of the complaint.

A Hearing was held on the complaint on November 5th, 2019. It was common cause that the Complainant notified the Respondent well outside the 2-month time limit. The Complainant stated she was consulting with a knowledgeable Solicitor on the matter who then declined to advance the case due to a conflict of interest. The Complainant advised that the Solicitor she consulted had previously been involved in an Equality case for a Traveller Group.  The Complainant also advised she sought during this time, to consult and take time consulting with people who were due to attend the event but who were not party to the complaint. The Complainant advised she was unaware of the WRC and understood that a complaint would have to be processed through the District Court. The Complainant consulted the IHREC at some unknown point and was advised to contact the WRC to process the complaint which she did on November 9th, 2019.

At the Hearing the granting of an extension of time for Reasonable Cause was contested by the Respondent as a preliminary issue. The Respondent argued that the Complainant had consulted with a Solicitor who was familiar with the Equality timeframes and had missed a number of deadlines to submit her complaint and grounds for an extension on time and it would be prejudicial to the Respondent to allow the Complainant to proceed. The Complainants grounds for the extension of time from 2 to 4 months were that the Solicitor who the Complainant consulted, declined to take the case and the Complainant understood the complaint had to be made through the District Court, she was consulting with the 23 Course participants whether to make a complaint, that the Complainant was unaware of time limits for making an application, that she was unaware of the WRC process and understood the complaint had to be processed through the District Court.

In neither the Complainants Submission, the Correspondence with the WRC or information provided to the Hearing there was no documented evidence of the Name of the Solicitor or when the Solicitor declined to take the case or when that consultation took place or when the Solicitor notified the Complainant that there was a conflict of interest. There was also no evidence provided at any time to support the consultation with the IHREC.

The Respondent argued that the request for an extension of time did not comply with the Labour Court ruling in Cementation Skanska v Carroll (DWT0338) where the Court determined that it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay and the Complainant must show that had those circumstances not been present they would have initiated the complaint in time.  The Respondent argued that no reasonable reasons were put forward by the Complainant in her submission and no formal evidence other than the Complainants verbal version of events was presented to the Hearing to show why the Complainant did not initiate the complaint in time.

Having considered all of the facts of this case I find that while there were verbal reasons offered by the Complainant for the delay they do not justify the delay nor was there any supporting documentary evidence provided to justify an extension of time. The Complainant had the benefit of seeking expert legal advice, by their own admission, apparently during the required two-month time limit in section 21(2) of the Act but this could not be confirmed by any correspondence. A Solicitor declining a case for conflict of interest is not unusual and the Complainant both admitted to her lack of knowledge of the law and failed to make the complaint in the allowed normal time. The Complainant is also an Advocate and as such must be presumed to have more knowledge of the law than a non-Advocate. The Complainant also failed to comply with the WRC directive of providing any grounds for Reasonable Cause within the allocated time of 14 days. In her reply to the WRC, the Complainant advised she had not received the notice until the 14th day but offered no supporting evidence of this other than her statement.  So, on both time frames, the Complainant did not meet the timelines allowed or provided., although the issue of missing the WRC deadline is not a statutory issue and not crucial to this Decision. The Complainant also appears to have taken time during the statutory time allowed to consult with parties who were not a direct party to the complaint. The attendees at the proposed function were not a party to the complaint. Crucially no supporting evidence of any documentation was provided by the Complainant to support any of her reasons to justify Reasonable Cause. The Respondent argued that the consultation with the professional Solicitor prior to the two-month statutory time allowed showed the Complainant had the benefit of professional advice and she choose not to act on it and the lack of formal evidence would be prejudicial to its ability to defend an extension of time beyond two months.

The Complainants version of events that she consulted with a knowledgeable Solicitor who did not advise her of the two-month statutory timeframe and the process of applying to the WRC is not credible.  I prefer the evidence of the Respondent that the Complainant had the benefit of the expert legal advice and there was therefore no justifiable cause for the delay in submitting the complaint within the allowed two-month timeframe. Accordingly, the Adjudicator finds there is no Reasonable Cause to extend the time limit of two months to four months and the complaint must fail in these circumstance.  As a result, I find that the I cannot investigate and decide upon the substantive matter.

“Reasonable Cause”, “ground of discrimination” and “extension of time”.