Complainant

Respondent

Anonymised Parties

A Parent

A Therapist

Representatives

Williams Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00034094-001

31/01/2020

The subject matter of this complaint is of very great sensitivity and emotion, and understandably so, in that it touches on family matters which have also been the subject of litigation.

It is for that reason that the parties are being anonymised in the interests of ensuring that the children at the centre of the case will not be identified.

The complainant is a separated father of four children.  Access to the children is the subject of legal proceedings.

He discovered by means of a Freedom of Information request that three of his four children were undergoing therapy without his knowledge or consent. 

He discovered this as a result of getting information from a state agency.  He then contacted the family therapist involved by phone and by e-mail, but she did not reply.

This therapy was completed with three of the four children, again without his knowledge or consent.  He was left out of the process which he regards as discrimination against fathers.

The therapist had spoken to the mother, but not to him, the father.

While the therapy was organised by another agency the complainant feels the therapist should have looked for written consent from both parents.

The complainant says that it is clear that the respondent’s decision to exclude the complainant from the provision of the proposed therapy arose not through inadvertence but rather through a fundamental misunderstanding of the nature of her appointment.

The respondent’s own evidence was that her details were to be kept private from the complainant. It was clear from the respondent’s evidence that the complainant suffered discriminatory treatment which was carried out over a period of time and the relevant date, according to Section 21 (11) is the date of the Act on which the discriminatory treatment ended.

A preliminary issue arises as to whether the time limits within the Equal Status Acts have been complied with.

The complainant submitted the ES1 form to the respondent on May 18th, 2021.

Prior to that there had been correspondence with the WRC following up on the initial complaint form submitted on January 30th, 2021.

 On November 23rd, 2020, the WRC wrote to the complainant acknowledging his letters of February 14th, 2020 and September 1st, 2020 following up on the complaint form submitted.

The letter advised the complainant of the need to submit Form ES1 within two months of the alleged discriminatory treatment.

The following day the complainant replied to the WRC saying that he did not have a correct address for the respondent.

The complainant had advised the WRC on February 12th, 2020 that he did not have an address for the respondent and she would not return his phone calls or emails.

He followed this up with a letter to the WRC on March 10th, 2020, indicating the only address which he could find for the respondent. The reason for the delay in sending Form ES1 to the respondent is that the complainant did not have the respondent’s postal address and the respondent actively sought to keep her contact details confidential from the complainant.

On February 8th, 2021, the complainant sought clarification from the WRC as towhether formES1couldbeemailed tothe respondent.

The WRC responded on May 11th, 2021 to the complainant advising that it could, and he did so on May 18th. 

There was a delay with the WRC responding the complainant’s letters and emailsonaccountoflockdownandtheremoteworkingarrangementsinplace.

It is further submitted that it would be unjust to penalise the complainant for the failure to submit ES1 within two months of the notification when he did not have a valid business address for the respondent, he was not legally represented at the time and he followed up his communication with the WRC and progressed his complaint in a timely manner.

He did submit the WRC complaint form within six months of the last discriminatory event and the respondent made it clear in her letter to the WRC on May 19th, 2021 that the complainant was not to contact her directly which would suggest submitting the ES1 Form within two months of the last date of discrimination would ultimately have been a fruitless exercise.

The respondent states in her letter to the WRC that she was “returning all documentation submitted as none of it was addressed or relevant to me”.

It is clear that had the complainant sent Form ES1 to the address (specified) that no response would have been forthcoming.

The respondent objected strongly processing of the case, and says it duplicates a complaint against another agency (that which had referred the children’s case to her).

She questions the ‘jurisdictional relevance’ of this case and would like to know why the WRC failed to carry out any research into its validity or relevance as it involved provision of therapy for three children as directed by a court.

The complaint has interrupted her work immensely, some of which is related to life threatening situations. Fortheduration of the pandemic,therapistshavebeenworkinginhighlystressfulconditions.

Children have been suffering without school, social workers and family supports and therapists, such as the respondent, have continued to provide therapy and emergency trauma intervention on a      daily basis; managing an increasing waiting list in an extremely pressurised environment.

She submits that the complaint has ‘no relevance’ to the WRC.

It has been brought late and without sufficient grounds, causing unnecessary time away from the important work that is being done in difficult circumstances.

She therefore objects entirely to the WRC taking this, and a related case, because the issue concerns a private, sensitive family law matter regarding three children who were her clients.

Her details were kept private from the complainant for specific reasons as revealing these would trespass into privacy within the family law hearing and the lives of three young children.  It is a cause of concern that the complainant managed to get her confidential contact details.

The communication of the ES1 form directly to the respondent on 18th May 2021 was entirely improper.

The complainant is out of time with his complaint. The respondent’s report which was issued to both parents was dated 28th February 2019 and her last session was March 28th, 2019.

The complainant was well aware that therapy was taking place and has had two years to ask the relevant persons why her details were kept from him, and why that decision was made.

In a submission subsequent to the hearing requested by the Adjudicator on the ES1 time limits the respondent made the following, additional points.

This form should have been sent within six months of the last known alleged discrimination, which the complainant said was 9th November 2019.

 In the complainant’s solicitor’s submission on 18th August (after the hearing), she stated that the complainant was not in a position to submit form    ES1 within two months after the last alleged discriminatory event as he did not have a postal address of the complainant.

This is untrue.

The complainant was well aware of the respondent’s place of work, and WRC guidelines on Equal Status Complaints clearly does not state any particular address is necessary, that being either a work or home address.

Also, he could have enquired from the Centre Co-Ordinator at her place of work, with whom he was in communication, whether they could accept a registered letter with the respondent’s name on it.

The respondent referred to the relevant WRC information, on equal status complaints, point 1:

 “Before you make a complaint to the Workplace Relations Commission (WRC) in regard to perceived discrimination or unlawful treatment, you must first send a Notification in writing to the respondent (person/company against whom you are considering the complaint). This notification must contain specific information concerning the alleged discrimination and must be received by the respondent within 2 months after the occurrence of the event in question; in order to assist you with this process, you may use the Equal Status Form ES1. The ES1 form should be sent directly to the respondent, and not to the WRC.”

The complainant sent the ES1 Form by email to the respondent on May 18th, 2021 so he is still over one year out of time with his form, even with the full six months plus another two months accounted for.

From WRC, regarding the Extension of the time limit:

Section 27(5) of the Act provides as follows:

“Notwithstanding subsection (4) a Rights Commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (4) (but no later than 12 months of such expiration)”

Also, regarding the complainant’s point raised regarding the out of time issue, it is wrong to state that the venue in which the respondent operated ‘continued to stonewall the complainant’.

Every issue raised by the complainant was answered and dealt with, apart from the first one that had been sent to the wrong email address, (for which the centre co-ordinator apologised to him).

Details of dates of the complainant’s correspondence, along with dates of each and every response made by the respondent was submitted for the hearing.

The respondent says she is prevented from commenting any further because this is a family law matter and she regards the complaint to be of a vexatious nature, improper, and could be interpreted as intimidation.

In accepting this complaint, without any research or questioning its intentions, validity or jurisdiction, the WRC has cost the respondent and related services a great deal of time and the financial burden which has directly resulted in the loss of over 100 therapy sessions for children.

From the submissions of the parties above it can clearly be seen that the subject matter of this complaint is of very great sensitivity, and understandably so.

On the one had there are the feelings of an aggrieved parent, and on another the highly sensitive and confidential professional ethics of a children’s therapist, all overarched by court proceedings in respect of the matter.

It is for that reason that the parties are being anonymised in the interests of ensuring that the children at the centre of the case will not be identified.

It will also be seen from the tone of the respondent’s submission that she may in some way feel she should not be answerable to the law and that the failure of the WRC to engage in some screening of the complaint should have taken place to ensure that her work was not disrupted.

The place where such consideration of the validity of a complaint under the Equal Status Act takes place is at an adjudication hearing.

The respondent has a somewhat inadequate understanding of the nature of due process if she believes that a statutory complaint can be set aside on the basis of some administrative act simply to avoid disruption of her work; important as that work undoubtedly is.

However, she is not alone in performing vital services and her indignation at the idea of becoming the subject of such a complaint and her apparent expectation of immunity is misplaced.

That said, a preliminary matter does arise from the respondent’s assertion that the complaint has not been made within the statutory timeframes.

The episodes about which the complainant made his complaint took place on January 1st, 2019 (the date the first child concluded therapy) and March 28th, 2019 (the date the second and third children concluded therapy).

The complainant also says that November 11th, 2019 is a relevant date as he made a request for information on that date to which he did not receive a response. Whether or not that action is sufficient to be considered one which can trigger the clock of discrimination is a moot point.

Normally, a complaint must be made within six months of an alleged breach and while the referral of the complaint to the WRC was made on January 31st, 2020, which, if the November date were to be accepted as the date of the latest incident of discrimination, that would bring it within the time limits for a referral to the WRC.

However, an additional requirement is imposed by the Equal Status Act.

This is that a person or organisation against whom a complaint is being contemplated must be put on notice of that fact by means of service of Form ES1.

In this case that form was not served until May 18th, 2021, some six months after the date asserted by the complainant as being the date of the last incident of an alleged breach.

The time limit for doing so is two months, which may be extended by a further two months.

In relation to notification Section 21 (2) of the Equal Status Acts states:

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."

Subsection (3) allows that this period may be extended to four months in exceptional circumstances.

The complainant’s explanation for his failure to submit the ES1 form within the time limits is set out above. The respondent used the facilities of a resource centre which he blames for obstructing him in getting the respondent’s contact details.

He also appears to blame administrative officials of the WRC for the delay.

In fact, WTC staff have no function whatsoever in advising complainants other than to explain the correct procedures to be followed for the submission of a complaint. Some of the dates he referred to were already outside the two-month limit in any case.

More significantly, the staff of the WRC have no obligation to assist a complainant in identifying the contact details for a complainant involved in a case he wished to pursue; this is entirely a matter for a complainant.

Specifically, the following appears in the complainant’s submission;

It is further submitted that it would be unjust to penalise the complainant for the failure to submit ES1 within two months of the notification in circumstances where he did not have a valid business address for the respondent, he was not legally represented at the time and he followed up his communication with the WRC and progressed his complaint in a timely manner.

Unfortunately, this submission, (presented by the complainant’s solicitor so the excuse of not having legal representation no longer applies), appears to completely ignore the requirements of the statute as set out above.

The requirement to submit the Form ES1 within the prescribed time limits is mandatory, as is clear from use of the word ‘shall’.

There is no discretion to apply some generalised principles of what would be just or equitable. The complainant did not apply for any extension of the time limits as required by section 21 (3) of the Act, nor demonstrate exceptional circumstances and even then, his application was outside the four-month limit.

In other words, there is no basis to bring the complaint within jurisdiction. It fails by quite some distance the requirements for a complaint to be considered.

For the reason set out above Complaint CA-00034094 is not within jurisdiction and it is not upheld.

Equal Status Act, Service of ES 1 form