ADJ-00033323

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033323

Parties:

	Complainant	Respondent
Anonymised Parties	a parent	a School

Complaint:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00039666-001	08/09/2020

Date of Adjudication Hearing: 28/10/2021

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance withthe Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The complainant was offered interpreter assistance if required and stated that he was happy to proceed without such assistance.

Background:

The complainant states that he made the school aware as early as 2017 that he was the legal guardian of his children who attended at the school (enrolling in 2015 and 2016 respectively) and that the school should keep him informed of their progress and/ or relevant other matters regarding their welfare. However, the enrolment form does not include the father as guardian. The school denies that it was made aware of the father’s legal standing in 2017. The school states that it never received the notification referred to by the complainant dated the 3rd October 2017. It did receive such notification it says on or about December 2019. The school states it has treated the father exactly the same as any other parent and once made aware of the father’s legal standing asked that he provide contact details so that he can be kept of informed of relevant matters concerning his children. The school found it difficult to contact the father in the absence of such contact details such as his phone number and email address.

The father states that he has been discriminated against on the ground of civil status. He states that this discrimination is ongoing and commenced on the 9th of May 2016. The complainant on oath states that he visited the school and informed the principal that he was the biological father of the children. The principal stated that she would talk to the children’s mother and revert. She failed to do so. Since then it is alleged that the complainant has received no communication from the school about his children. On the same day the father requested to see his son and was denied access. It states that unannounced visits by any parent or guardian would be treated in exactly the same way which is the school policy. The father states that he was humiliated by the principal and it is alleged that she threatened or did call the Gardai when he pleaded to see his son. The father did see his son on the 25th of November 2015, 6 months previously when he also arrived unannounced.

The ES form is dated the 14th of November 2019.

Under oath the father stated that he had not made contact with the school until he sent the ES form dated the 14th of November and that the he found the current principal to be courteous and respectful to him.

The complainant alleges ongoing and continuing discrimination.

The school states the matters complained of go back to 2016 and are out of time.

In Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:

In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" 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 that 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 Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."

The test is an objective one and importantly the case law requires that 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.

The complainant states that his complaint is ongoing and therefore the time limits as relied upon by the respondent do not apply.

Preliminary Matter

Having regard to the fact that the matter complained of relates to an incident occurring in 2016, I have decided that in this case it is fair and efficient to determine if the matter before me is statute barred.

The complainant states that the discrimination is ongoing and what this means is that it was ongoing up to the date of serving the ES 1 notice. The complainant under oath stated that he had not made contact with the school since his visit in May 2016. The ES form is dated the 19th of November 2019.

There is a conflict between both parties concerning the date of notification of guardianship. However, as a fact the father accepts that he has not contacted the school until November 2019 since his last visit in 2016, which is more than 3 years later. Crucially the principal involved in the original interaction has left the school.

Section 21 of Equal Status Act 2000 as amended requires that:

(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 ,

(3) ( a ) On application by a complainant the Director of the Workplace Relations Commission 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 of the Workplace Relations Commission 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 school argue that they would be prejudiced based on the inordinate delay to notify them of the matters that allegedly constitute discrimination as they occurred in 2016.

Section 21 also provides:

(11) For the purposes of this section prohibited conduct occurs —

( a ) if the act constituting it extends over a period, at the end of the period,

( b ) if it arises by virtue of a provision which operates over a period, throughout the period.

The complainant argues that the discrimination continued and therefore the matter is properly before me.

A period of more than 3 years elapsed before the complainant made contact with the school alleging ongoing discrimination grounded on an event that took place 3 years previously. The facts as detailed in the ES Form are what is relied upon by the complainant and that must be so; to afford the respondent an opportunity to address the grievance of prohibited conduct. Those facts again were relied upon at the hearing. The failure to make contact with the school arising from a communication and conversation that took place 3 years previously compromises the respondent’s capacity to respond.

The argument that ongoing discrimination continues in the absence of any subsequent communication from the complainant to the respondent since 2016 until late 2019 does not provide compelling evidence of ongoing and continuing prohibited conduct. In these circumstances it would be unjust to require the respondent school to address a claim; where the legislation intended that notification of the prohibited conduct would take place within 2 months that could extend to 4 months. In exceptional circumstances that could be extended beyond that period. However, the facts of this case do not afford the complainant any extension having regard to the time that has elapsed since the alleged prohibited conduct occurred. Also the assertion that ongoing continuing discrimination occurred without any facts to ground that claim does not provide a sufficient ground to bypass the time limits set down in the legislation. In fact at the hearing the complainant has acknowledged that since his most recent communication with the school in 2019 he has been treated respectfully.

Having regard to all of the circumstances of this case I determine that the matter is statute barred as the time to bring the complaint has elapsed by a number of years.

Summary of Complainant’s Case:

See preliminary matter

Summary of Respondent’s Case:

See preliminary matter

Findings and Conclusions:

I determine I have no jurisdiction to hear the complaint as the time to bring the complaint to the Workplace Relations Commission has elapsed by a number of years and the required ES form was not served on time as required by the Act.

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.

I have exercised my discretion to anonymise the parties having regard to the sensitive nature of the complaint that concerns access to children and guardianship and do so in the best interest of the children mentioned in evidence at the hearing.

Dated: 15-11-21

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Civil Status-Guardianship-Failure of School to involve father