ADJUDICATION OFFICER DECISION.

Adjudication Reference: ADJ-00029528

Parties:

	Complainant	Respondent
Parties	Declan Kelly	Ms Byrne, Company Director Acap Clg [The Association of Child Art Psychotherapy Co Ltd by Guarantee]

Representatives

In person.

Larry Brennan, Arthur McLean Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00038802-001	18/07/2020

Date of Adjudication Hearing: 21/05/2021

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 25 of the 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.

Background:

This complaint was submitted to the Workplace Relations Commission under section 21 of the Equal Status Act, 2000.

The complaint was received on 18th July 2020.

Summary of Complainant’s Case:

The Complainant’s complaint is contained within a large volume of emails copied to the Workplace Relations Commission.

On 5th May 2020 the Complainant wrote to the Respondent:

“I wish to register a complaint against xxxx xxxx, who (as an associate member according to your website) put herself out as a person fully qualified + misrepresented herself, under pretext of fulfilling the requirements of a High Court Order, contrary to your Code of Ethics.

In any event she contravened almost every clause in your Code of Ethics: emboldened below.

I seek, in the first instance, that ACAP explain the matter + outline how ACAP intend to deal with the affair.”

By email dated 8th May 2020 the Complainant sent the following email to the ACAP Complaints Secretary:

For the record, your assertion 'that the individual member you refer to is a graduate of the

M.Sc. in Child Art Psychotherapy and therefore is registered with our association as a 'Full

Member.’ does not necessarily hold true, being a graduate does not, de facto nor by

default necessarily mean the individual is registered with your association as a Full Member

+ runs absolutely contrary to what your web site currently recorded as being the case, as has

been submitted + attached again here for clarity:

(a screen shot from the ACAP website was included at this point)

Though I note, as of the time of writing this has been taken down from your web site and the

following replacement exhibits:

It is unfortunate that you conveniently chose to ignore the second [+ now, consequently

more pertinent] facet of my complaint: 'In any event she contravened almost every clause in

your Code of Ethics; emboldened below.

I seek, in the first instance, that ACAP explain the matter in full + outline how ACAP intend to

deal with the affair.'

You have now categorically confirmed + emphatically declared above that 'the individual

member you refer to is a graduate of the M.Sc. in Child Art Psychotherapy and therefore is

registered with our association as a 'Full Member.' '

Given that you have now confirmed, by declaration, that she is in fact, a Full Member of your

Association means that she is bound by your Code of Ethics [assuming your association have any.]

In light of pending litigation, I again 'seek, in the first instance, that ACAP explain the

matter in full + outline how ACAP intend to deal with the affair.'

'The individual' having contravened almost every clause in your Code of Ethics as

emboldened on my original email.

On 19th May 2020 the complainant wrote:

To whom it concerns

I note your web site [ACAP.ie] is oddly + suspiciously silent on a number of crucial details

pertinent to a 'Professional Association'; to this end can you please forward by return,

contact details for the Chairman, Secretary + Complaints Administrator (whose email

address is a Gmail account!) to include names and contact address of your 'organisation'.

Please forward a copy of your Complaints procedure.

This is in relation to a legal matter.

Thank you in anticipation

On 24th May 2020 the complainant wrote:

Thank you for your response, ACAP Complaints Committee!

The contents of which are an utter nonsense.

You ought to get a lawyer to review what you have just committed to in writing!

Legally my complaint has been submitted, in writing!

I WROTE the following 5th May 2020:

To whom it concerns

I wish to register a complaint against (name redacted), who [as an associate member,

according to your web site, line 185 below] put herself out as a person fully qualified +

misrepresented herself, under the pretext of fulfilling the requirements of a High Court Order,

contrary to your Code of Ethics.

In any event she contravened almost every clause in your Code of Ethics; emboldened below.

I seek, in the first instance, that ACAP explain the matter in full + outline how ACAP intend to

deal with the affair.

Yours sincerely

The member was named in my mail

The breaches were emboldened on the mail!

Come out and identify + declare yourself.

We'll let the courts decide.

To date you have failed to provide or identify a name of any ACAP officer dealing, a postal

address, a legitimate email address [you're working off a gmail address!] a copy of your

complaints procedure [in order that I might 'comply'!] anything to substantiate the

'members' credentials [which incidentally have all since been reclassified], all the while

fiddling with your web site to try and conceal pertinent facts!

Your 'association' is a joke + anything but professional.

On 29th May 2020 the Complainant wrote:

Further to your efforts to hide + conceal + in the absence of you providing requested details, please be advised that

I will begin here:

On 6th June 2020 the Complainant wrote:

In the absence of you confirming details of any senior officers, correspondence addresses, complaints

procedures etc + following your registered claims, contrary to S12 of Criminal Law Act, 1976; the Garda at Donnybrook having validated the above address, please find attached form-es-1-equal-status-complaint notification

In an ES1 form completed by the Complainant on 6th June 2020 he stated the following:

I, the separated father & legal guardian of a [minor] child, dissatisfied with the services provided by one of your “members” / “associate members” have been discriminated against by you [the only publicly ascertainably declared and registered senior] representative of ACAP CLG, your designated complaints “officer” and ACAP CLG [The Association of Child Art Psychotherapy Co Ltd by Guarantee], including but not limited to the failure by you, your designated complaints “officer” and ACAP CLG in the select and constructive exclusion of me from, the provision of services including the ability to efficaciously register a complaint in relation to the provision of services by said “member”, my objection having been made in writing and having been acknowledged by your “association”, your constructive obstruction at great lengths, your efforts to evade facilitating the receipt of a complaint about a “member” and your grossly uncooperative and evasive behaviour in relation to addressing the matter. You failed to accord with your own declared procedures and “code of ethics”, you harboured and concealed a “member” who acted unlawfully, retrospectively manipulated the details of your web site to align with your deviant behaviour, have been evasive in the extreme and hidden and concealed your procedures including your complaints procedures and details including contact details of any “senior officers”.

Summary of Respondent’s Case:

BACKGROUND:

Child Art Psychotherapy as a separate psychotherapy modality was introduced into Ireland in January 2001.

The Respondent ("ACAP") is a Company Limited by Guarantee, incorporated in Ireland on the 4th April 2017. ACAP is a non-profit entity established for the purposes of promoting Child Art Psychotherapy in Ireland, to set down general standards for those qualified to practice Child Art Psychotherapy and to create a platform through which membership of other professional bodies might be gained.

There are currently 28 full Members of the Association each of whom voluntarily subscribes to ACAP'S principles set out in ACAP's Code of Ethics, a copy of which, applicable at the time of this complaint is attached. ACAP's Code of Ethics is updated from time to time.

Associate Membership is open to certain graduates and those undertaking Master of Science Degree in Child Art Psychotherapy.

Full members of the Association comprise Psychotherapists specifically trained in Child Art Psychotherapy each of whom has been clinically trained in the Mater Misericordiae University Hospital and University College Dublin School of Medicine.

Since the time of the complaint ACAP has refined its membership into four categories of membership, Full members, Associates, Students and Graduates, the latter of whom who being engaged in post MSc. training.

ACAP'S CODE OF ETHICS:

ACAP's Code of Ethics obliges each Member to abide by and adhere to a number of principles set out in the Code, as regards how they should practice, how they should be supervised and other important matters, a breach of which may in certain cases lead to the termination of a Member's membership of the Association.

The process by which a contravention by a Member of ACAP's Code of Ethics is determined (Paragraph 1.3) by ACAP is primarily through its Complaints Procedure.

ACAP's Complaints Procedure is also updated from time to time.

THECOMPLAINT:

After an initial query concerning the manner in which a Complaint might be made (email 30th April 2020 10.58) the Complainant by email dated the 5th of May 2020 20.44 made a complaint in inchoate and generalised terms against an individual who the Complainant described as an Associate Member. ACAP by email dated 6th May 2020 10.33 acknowledged receipt of the complaint, informing the Complainant that a member of ACAP' Complaints Committee would be in touch.

By a second email dated 6th May 2020 15.10 the Secretary to ACAP's Complaints Committee clarified the position as regards the individual about whom the Complainant had complained by confirming that the individual in question was a full Member of the Association and advised the Complainant that his complaint should be sent as a password protected document to a specifically established "complaints" email address. The Complainant was asked to provide his "specific complaints" as regards ACAP's Member.

This clarification led to a reply by the Complainant, who in an email dated the 8th May 2020

9.30 informed ACAP that "In light of pending litigation I again seek, in the first instance, that ACAP explain the matter in full + outline how ACAP intend to deal with the affair".

On the 11th May 2020 9.47 ACAP informed the Complainant that " ...in light of the pending litigation referred to in your last email...." ACAP could not " . . .enter into further correspondence ...on this matter" and that ACAP's approach in this regard was"...in keeping with the ACAP Complaints Procedure".

In the Complainant's reply 11th May 2020 9.55 the Complaint stated, "That is incorrect. To be clear I am initiating proceedings against an individual acting unlawfully + outside their professional code of ethics/conduct".

The Complainant in his email of the 11th of May 2020 also threatened legal proceedings against the Secretary of the Complaints Committee and ACAP.

One of the three central principles of ACAP's Complaint's Procedure states as follows:

3. “

Legal Action. If any stage during the processing of a complaint, legal action is taken by either of the parties against the other, the hearing of the complaint under the ACAP Complaints Procedure shall be suspended until the legal action has been concluded. Both parties to any complaints being processed under the ACAP Complaints Procedure are obliged to inform the Complaints Committee or the Formal Board, as the case maybe, ifthey have commenced a legal action against the other party".

The taking by the Complainant of legal action against the Member in respect of whom the Complainant complained precluded ACAP from processing the Complaint's complaint any further. ACAP's approach to the interconnection of legal action with a complaint is entirely consistent with the approach taken by many other professional bodies, is objective, is imperatively mandated and is wholly non- discriminatory.

In a subsequent email dated 22nd May 2020 17.30 ACAP set out in some detail its position as regards the Complaint and stated "however has you have been informed, generally the Committee will not continue any consideration of complaints while related litigation is extant

or pending". ACAP did however once again ask the Complainant " . . .to submit a written complaint ..." which would be then"...considered by the Committee."

On the 24th of May 2020 14.17 the Complainant stated that his complaint in writing was made on the 5th of May 2020.

This unfortunately led to an unnecessarily abusive communications from the Complainant one of which was his email of the 29th May 2020 9.46 in which he described ACAP as a ''joke" its committee/Members as "Clowns" and most seriously accused ACAP of "deviant behaviour", "evasive" and other unacceptable terms. In a second email of 29th May 2020 23.04 he attempted to identify one of the officers of ACAP and that Officer's Home Address in what was perceived by the Officer in question as being intimidating.

On foot of this email ACAP concluded that the Complainant wanted his email of the 5th of May to be treated as his complaint. In its email of the 29th of May 2020 15.15 ACAP confirmed that the Complainant's email of the 5th of May " .. . has been deemed to be a complaint made in writing" and went on to record its determination that in the absence of a more detailed complaint it was decided by the Committee that it contained insufficient information to progress to the next stage of the Complaints Procedure.

ACAP's initial position as regards the Complainant's Complaint was that having regard to the legal proceedings mentioned by him in his emails that the Complaints Process was suspended. However, on foot of the Complainant's email of the 24th of May 2020 the Complaints Committee felt obliged to consider the complaint and determined that as it was insufficiently detailed to constitute a breach of conduct under ACAP's Code of Ethics it could not be considered.

WORKPLACERELATIONSREFERRAL:

On the 6th of June 2020 the Complainant served a Form ESl on ACAP in which he contended that he was discriminated against on the grounds of gender, civil status and family status. In that Form the Complainant alleged that he was discriminated against by ACAP (i) in excluding him from its Complaints Procedure including the registration of a complaint against one of its Members, (ii) in evading the receipt of a complaint against a Member and by being grossly uncooperative and evasive and (iii) failing to accord with its own Code of Ethics by (iv) acting unlawfully in manipulating its website and by (v) concealing its procedures and officers.

The basis of the alleged discrimination was that the Complainant was discriminated against on the grounds of (i) gender (ii) Civil Status and/or Family Status.

LEGAL SUBMISSION:

In his decision of the 25th February 2020 (ADJ-00026209) the Adjudication Officer, relying upon the case of Dr. Theresa Mitchell v. The Southern Health Board determined that to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them, the Complainant must first establish a prima facia case of discrimination utilising a three-tier test as follows:

I. First the Complainant must establish that he/she is covered by the relevant discriminatory ground.

II. Second, the Complainant must establish that the specific treatment alleged has occurred.

III. Thirdly, it must be shown that the treatment meted out to the Complainant was less favourable than the treatment which was or would have been afforded to another person in similar circumstance not covered by the relevant discriminatory ground.

In this case, ACAP's initial response was that as the Complainant had made reference to legal proceedings it was precluded by the third of its principles on foot of which its Complaints Procedure was based from proceeding with the consideration of the Complainant's Complaint. That initial decision was wholly objectively based in its written Complaints Procedure and was not discriminatory in any way.

Subsequently, pressed by the Complainant to process his complaint in heated exchanges and in the absence of any detailed specifics of the nature of the Complaint, ACAP determined that the Complainant's Complaint was insufficiently detailed to advance pursuant to its Complaints Procedure. This decision was made after the Complainant was asked on three occasions to provide more specific details of his complaint (6th May 2020 15.10, 22nd May 2020 17.30) and 26th May 2020 12.27) which details were not forthcoming.

As the Complainant's "Civil Status" (namely, single, married, separated, divorced, widowed or in a civil partnership) was not known to ACAP until the Complainant completed and submitted his Form ES1 on the 6th of June 2020 to ACAP, and after the alleged treatment by ACAP was concluded, the complaint based thereon must fail.

As regards the Complainant's "Family Status" contention is concerned, the practice of Child Art Psychotherapy is by definition entirely "child centred" and where no non-child centred comparator is possible. It is therefore untenable for the Complainant to contend that ACAP discriminated against the Complainant on the grounds that he was either a parent of a child or in loco parentis to a child when all referrals to ACAP's Members and all complaints about its Members must by necessity be from such a person in the same position as the Complainant, namely a parent of a child or a person in loco parentis to a child.

For the Complainant to succeed in establishing a prima facie case on the grounds of gender, to which ACAP must then reply the Complainant must prove on the balance of probabilities that the treatment meted out to him by ACAP was less favourable than it would have been had he been female.

The decision by ACAP initially to suspend the Complainant's Complaint as it was mandated to do under its Complaints Procedure due to the existence of legal proceedings between the Complainant and ACAP's Member was wholly objectively made without regard to the Complainant's gender.

Subsequently, the request for more detailed specifics of the Complainant's Complaint was proportionate, objectively required and wholly non-discriminatory as was the decision by ACAP that in the absence of those detailed specifics the Complainant's Complaint could not be advanced.

In conclusion, dissatisfaction by the Complainant with the process of making a Complaint to ACAP about one of its Members, or the manner in which the Complainant perceived that complaint was handled by ACAP, does not equate to or amount to a finding that a prima facie case of discrimination on the grounds of gender has been made out.

Findings and Conclusions:

On 5th May 2020 the Complainant wrote to Respondent:

In any event she contravened almost every clause in your Code of Ethics: emboldened below.

I seek, in the first instance, that ACAP explain the matter + outline how ACAP intend to deal with the affair.”

The following day (6th May 2020) the Respondent replied to this email confirming that the named individual referred to in the Complainant’s email is a graduate of the M.Sc. in Child Art Psychotherapy and is therefore registered with the association as a ‘Full Member’.

This membership status entitles a member to practice and advertise themselves as a ‘Child Art Psychotherapist’.

This email concluded with “Should you have any further queries or specific complaints regarding this matter please send them as a password protected document to this email address”.

This clarification led to a reply by the Complainant, who in an email dated the 8th May 2020 9.30 informed ACAP that "In light of pending litigation i again seek, in the first instance, that ACAP explain the matter in full + outline how ACAP intend to deal with the affair".

The Respondent replied to this email on Monday 11th May 2020 stating the following:

“ACAP cannot enter into further correspondence with you on this matter in light of the pending legislation referred to in your last email”

The Complainant replied as follows:

That is incorrect.

To be clear I am initiating proceedings against an individual acting unlawfully + outside their professional code of ethics / conduct.

My dealings with you + ACAP are a completely separate + mutually exclusive matter. Are you actually stating [as a professional representative body] with authoritative legal backing, that you are refusing to engage + address my complaint + are going to force me to initiate litigation against you + ACAP also?

The email sent by ACAP to the Complainant on Friday 22nd May provides a comprehensive summary of events that had taken place thus far:

Dear Declan

We refer to your emails dating from 5th May 2020.

On the 5th May 2020 you emailed ACAP and stated that you wished to register a complaint against a named member. In that email you stated that the member held themselves as a person fully qualified, misrepresented themselves in the context of fulfilling a High Court Order and contravened the ACAP Code of Ethics. You did not specify what particular act(s) of the member you were complaining about. You also requested that ACAP “explain the matter in full” and “outline” how it intended to “deal with the affair”. This email was passed to the Complaints Committee.

On the 6th May 2020, the Complaints Committee responded to clarify confusion regarding the status of the individual’s membership status. You were invited to outline any “specific complaints” in a password protected document to the identified email address of the Committee.

By email of 8th May 2020 you restated that the member contravened the ACAP Code of Ethics. You did not put forward a specific complaint in writing. You again requested that ACAP “explain the matter in full” and “outline” how it intended to “deal with the affair”. You stated that this request was in light of pending litigation.

On the 11th May 2020 you were informed that Committee could not enter into correspondence with you regarding in circumstances where you had identified the purpose of said correspondence as pending litigation.

In reply, on the 11th May you alleged that ACAP were refusing to engage with or address your complaint. You stated that the pending litigation relates to an unidentified individual acting “unlawfully” and “outside their professional code of ethics”. You stated that the pending litigation is a separate matter to your complaint. You also threatened to initiate litigation against the Secretary of the Complaints Committee and ACAP.

In further emails of 11th May you requested a copy of the ACAP Complaints Procedures.

In reply to your request that the Committee “explain the matter in full”. You have stated that an individual member has breached the ACAP’s Code of Ethics, held themselves out to be fully qualified and acted in breach of a High Court Order. You have been invited to make a specific complaint in writing to the Complaints Committee but have chosen not to do so. Until such time you put forward a specific complaint in writing to the Complaints Committee, we cannot begin to consider it. Please be assured that the Committee will treat all complaints seriously, impartially and in accordance with fair procedures.

In reply to your request that the Committee outline how it intends to “deal with the affair”. If you choose to submit a written complaint it will be considered by the Committee. If the complaint is prima facie admissible and an investigation is warranted, you will be provided with copy of the complaints procedure which outlines the process. If the complaint is inadmissible, you will be informed of the reasons for this.

You have referred to litigation, pending litigation and a breach of a High Court Order. We are a stranger to these matters. As you have not made complaint to the Committee, you are not obliged to inform the Committee whether related litigation is pending or extant. You are free to make a complaint to the Committee notwithstanding related and the Committee will treat all complaints seriously, impartially and in accordance with fair procedures. However, as you have been informed, generally the Committee will not continue any consideration complaints while related litigation is extant or pending. If the Committee was to consider suspending consideration of a complaint because of extant legal proceedings, all parties are given an opportunity to make representations on the issue.

You have also threatened to “initiate litigation” against the Secretary of the Complaints Committee and against ACAP. The office of the Secretary of the Complaints Committee and the Complaints Committee deny any wrongdoing and/or legal liability. With your consent we can pass your email to the ACAP Secretary for a response from the Association.

Yours sincerely,

ACAP Complaints Committee

This email led to what the Respondent representative suggested was unnecessarily abusive communications from the Complainant, one of which was his email of 29th May 2020 in which he described ACAP as a “joke”, it’s committee members as “clowns” and more seriously accused ACAP of “deviant behaviour”, “evasive” and other unacceptable terms. In a second email of the same date he attempted to identify one of the officers of ACAP and that Officer’s home address in what was perceived by the officer in question as being intimidating.

Throughout this exchange of emails, the Respondent remained unaware of the nature of any complaint the Complainant may have had. They had no alternative but to accept the email from the Complainant on 5th May 2020 as his complaint.

In an ES1 form completed by the Complainant on 6th June 2020 he stated the following:

On the 6th of June 2020 ACAP received a completed ES1 form in which he contended that he was discriminated against on the grounds of gender, civil status and family status. In that Form the Complainant alleged that he was discriminated against by ACAP:

(i) in excluding him from its Complaints Procedure including the registration of a complaint against one of its Members,

(ii) in evading the receipt of a complaint against a Member and by being grossly uncooperative and evasive and

(iii) failing to accord with its own Code of Ethics by

(iv) actingunlawfullyinmanipulatingitswebsiteandby

(v) concealing its procedures and officers.

The representative for the Respondent has addressed each of these complaints as follows:

In Melbury Development Ltd -v- Valpeters [2010] ELR 64 the Labour Court stated that ‘mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’

The Complainant has failed to establish facts from which it may be presumed that the principle of equal treatment has not been applied to them, the Complainant must first establish a prima facia case of discrimination, this has not happened in the instant case.

I consider the complaint as presented not to be well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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 consider the complaint as presented not to be well founded.

Dated: 4th October 2021

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words: