Complainant

Respondent

Parties

Jausz  Skorupa

Permanent TSB

Representatives

In person 

Ronan P. Murray

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034994-001

28/02/2020

The Respondent in this complaint is a bank and the Complainant is a customer of the bank.

This complaint was received by the Workplace Relations Commission on 23rd February 2020.

Preliminary Argument.

The only reply that the Complainant could offer was that he found the staff of the Respondent bank very unhelpful and this was the cause of the delay.

Preliminary Argument.

The Respondent submits that this complaint should not proceed as the Complainant is out of time on both submitting the Equal Status form and also in submitting their claim to the WRC.

The Complainant filed their Equal Status form to the Respondent on 5th January 2020 when the incident occurred up to 5th April 2019, some 9 months after the alleged incident occurred.

The Complainant submitted their complaint form to the WRC on 23rd February 2020, some 10 months after the alleged incident occurred on 5th April 2019.

The ES1 form must be submitted to the Respondent within 2 months of the alleged incident and within 6 months to the WRC following this. Extensions to these time limits are only granted in exceptional circumstances with those time limits being 4 and 12 months respectfully.

The applicable test in relation to establishing if Reasonable Cause has been shown for the purposes of granting an extension of time is provided in Cementation Skanska v Carroll (DWT0338). Here the Labour Court noted:

“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.”

Therefore, 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 submits that no such reasonable excuse or reason has been provided which explains a delay of 8 months in the standard timeframe or 6 months with an extension.

In A Hotel Client A Hotel Group (ADJ-00026218), the Complainant failed to submit their ES1 form within the 2 month statutory timeframe. The Adjudication Officer was presented with no Reasonable Cause to extend the time limit of 2 month to 4 months and therefore the complaint failed and the AO was unable to proceed with the matter.

In the event that the Complainant seeks to rely on not being aware of the requirement to submit the ES1 form within the 2 month time period, the Bank refers to Lukasz Woloszyn v Mary Casey (ADJ-00026425) wherein the Adjudication Officer did not accept the Complainant’s assertion that they were not an Irish National and therefore unaware of the requisite time limits. The AO noted that it is well established 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.” (Avery Weigh-Tronix v Kinsley DWT1244).

Preliminary Argument.

Section 21 of the Equal Status Act, 2000 reads as follows:

21(1) A person who claims that prohibited conduct has been directed against him or her, subject to this section, seek redress by referring the case to the Director.

21 (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 by referring the case to the Director.

And

b)      May in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, 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.

21(3) If, on application by the complainant, the Director is satisfied –

a)       That exceptional circumstances prevented the complainant from notifying the respondent in accordance with subsection (2), and

b)      That it is just and equitable, having regard to the nature of the alleged conduct and to any other relevant circumstances, that the period for doing so should be extended beyond the period of 2 months provided for in that subsection.

The Director may direct that, in relation to that case, subsection (2) shall have effect as if for the reference to 2 months there was substituted a reference to such period not exceeding 4 months as is specified in the direction; and where such a direction is given, this Part shall have effect accordingly.

21(4) The Director shall not investigate a case unless he or she is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

21(6) Subject to subsection (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

21(7) If, on application by the complainant, the Director is satisfied that exceptional circumstances prevented the complainant’s case from being referred within the time limit specified in subsection (6) –

a)      The Director may direct that, in relation to that case, subsection (6) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such a period not exceeding 12 months as is specified in the direction, and

b)      Where such a direction is given, this Part shall have effect accordingly.

In the instant case the Complainant sent form ES1 to the Respondent on 5th January 2020, some 9 months after the most recent date of alleged discrimination.

The Complaint was received by the Workplace Relations Commission on 23rd February 2020, some 10 months after the most recent date of alleged discrimination.

Any explanation offered by the Complainant did not reach the level of exceptional circumstance.

I also not that the Complainant failed to reply to letters and phone calls made by the Respondent.

Due to the fact that the ES1 form and the WRC Complaint form were submitted well outside the permitted time limits I have no jurisdiction to hear the complaint as submitted under the Equal Status Act, 2000.

Time Limits.