ADJ-00021635

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00021635

Parties:

Complaints:

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000 (the Act), following the referral of the complaint to me by the Director General, I inquired into the complaint and I firstly considered as a preliminary matter if I have jurisdiction to hear the complaint and if the claim is properly before me for investigation pursuant to the powers to investigate under the Act.

Background:

Preliminary Matter

The claimant states that he is requesting an extension of time pursuant to section 21 of the Act as exceptional circumstances prevented him from referring his case within the time limit. There are no specific details provided other than that they arose due to exceptional circumstances. The relevant subsections are:

(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 ,

and

( b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the  Director of the Workplace Relations Commission  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 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.

And at subsection 6:

( a ) Subject to subsections (3)(a)(ii) and (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 the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

  ( b ) On application by a complainant the  Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly

In addition to the time periods that must be complied with a complainant also must detail facts that prima facie meets the burden of proof before the respondent is required to rebut that presumption. Equality Officers previously have consistently applied the Labour Court statement in Mitchell v Southern Health Board [2001] ELR 201 to explain what a complainant must do. The Labour Court in several determinations have repeatedly emphasised that the facts must be significant to give rise to such an inference and in a recent case Public Appointments Service and Mr Bernard Lester [EDA 2021] the Court detailed what this meant:

Discussion and Decision

Section 85A (1) of the Act provides as follows in relation to the burden of proof on a Complainant who alleges discriminatory treatment contrary to the Act:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

This Court – in its determination in Southern Health Board v Mitchell [2001] ELR 201 – considered the extent of the evidential burden imposed on a Complainant by section 85A and held:

“The first requirement is that the claimant must establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination.

It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there is no infringement of the principle of equal treatment.”

It follows that a complainant has to establish both the primary facts upon which he or she relies and also that those facts are of sufficient significance to raise an inference of discrimination. In Cork City Council v McCarthy EDA 21/2008, this Court stated in this regard:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference or presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

In Melbury Developments Ltd v Valpeters [2010] ELR 64, however, the 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”.

Having regard to the submissions of the Parties in this case, and the extensive correspondence between them opened in the course of the appeal, the Court is of the view that the Complainant does not meet the burden of proof required by section 85A (1) of the Act. The Complainant’s case is grounded largely on his belief that it was sufficient for him to list out his work-related experience in his application form submitted in February 2018 to PAS and this act alone should have guaranteed him progression to the interview stage of the recruitment process. In fact, it was incumbent on the Complainant himself to demonstrate to the Shortlisting Board in his written application - having regard to his undeniably extensive professional experience - that he met the criteria listed in the advertisement for the position so as to merit being shortlisted for interview.

All three complaints were lodged with the Workplace Relations Commission on the 28th April 2019.

CA000-28007:

Section 21(2) requires that the notice to the respondent is provided within 2 months of the last occurrence; which in this case is 03/November/2018. This period can be extended to 4 months for reasonable cause which would extend the time to 02/January 2019.  Reasonable cause requires that exceptional circumstances arose that also explains why the delay occurred. In this case the ES 1 Form is served after the 4 month period. Finally at subsection 3 it states 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. However, this is also subject to:

(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

Section 3 may be considered in so far as the Adjudicator is satisfied that it is fair and reasonable in the particular circumstances of the case to do so and also having regard to the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint. As there are no particular circumstances provided in the complaint form to explain why the delays occurred;  it is not possible to determine if it is fair and reasonable to do so.

Based on the fact that the complainant has made a large number of equal status complaints and is very familiar with the required notice periods under the Act a balance must be struck between his right to bring a complaint and the right of a respondent party to be notified on time concerning the detail of the alleged prohibited conduct and also that it is lodged with the Workplace Relations Commission on time. The ES 1 form was not served within the statutory 2 month period and only subject to reasonable cause this maybe be extended to 4 months, no explanation for the delays have been given.  The ES 1 form was served on the respondent after the 4 month period. The complaint was registered with the Workplace Relations Commission after the 6 month time period had elapsed. There is no reasonable cause provided in the complaint form that provides a reasonable cause for the delay in registering the complaint with the Workplace Relations Commission.

As the most recent date of the alleged incident of discrimination was on the 4th September 2018; the complaint should have been registered with the WRC on 3rd March 2019, when in fact it was received on the 28th April 2019. Again this period maybe extended for a period of 12 months for reasonable cause; however, no explanation or detail of the exceptional circumstances that caused the delay are provided.

The complainant is not a novice litigant.  The ES 1 form was served outside the required 2 month period of the most recent alleged prohibited conduct and outside the discretionary  4 month period for reasonable cause and in the absence of any such cause being provided or any exceptional reasons provided for disregarding subsection 2 and was also outside the statutory 6 month period to lodge the complaint with the Workplace Relations Commission, I determine that the complaint is statute barred.

Section 38 A states:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

However on the facts detailed in the complaint form there are no facts given that constitute a prima facie case. This test requires that the complainant would detail facts that show (based on the ground being relied upon that he was treated less favourably than another comparator) and they indicate that there is a real possibility of discrimination and so raise an inference of discrimination. The test does not have  to show a real probability of discrimination; but the facts must have a significance that give rise to a presumption of discrimination that in turn must be rebutted. That threshold has not been met in this case.

CA-00028008:

Section 21(2) requires that the notice to the respondent is provided within 2 months of the last occurrence; which in this case is 03/November/2018. This period can be extended to 4 months for reasonable cause which would extend the time to 02/January 2019.  Reasonable cause requires that exceptional circumstances arose that also explains why the delay occurred. In this case the ES 1 Form is served after the 4 month period. Finally at subsection 3 it states 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. However, this is also subject to:

(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

Section 3 may be considered in so far as the Adjudicator is satisfied that it is fair and reasonable in the particular circumstances of the case to do so and also having regard to the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint. As there are no particular circumstances provided in the complaint form to explain why the delays occurred;  it is not possible to determine if it is fair and reasonable to do so.

Based on the fact that the complainant has made a large number of equal status complaints and is very familiar with the required notice periods under the Act a balance must be struck between his right to bring a complaint and the right of a respondent party to be notified on time concerning the detail of the alleged prohibited conduct and also that it is lodged with the Workplace Relations Commission on time. The ES 1 form was not served within the statutory 2 month period and only subject to reasonable cause this maybe be extended to 4 months, no explanation for the delays have been given.  The ES 1 form was served on the respondent after the 4 month period. The complaint was registered with the Workplace Relations Commission after the 6 month time period had elapsed. There is no reasonable cause provided in the complaint form that provides a reasonable cause for the delay in registering the complaint with the Workplace Relations Commission.

As the most recent date of the alleged incident of discrimination was on the 4th September 2018; the complaint should have been registered with the WRC on 3rd March 2019, when in fact it was received on the 28th April 2019. Again this period maybe extended for a period of 12 months for reasonable cause; however, no explanation or detail of the exceptional circumstances that caused the delay are provided.

The complainant is not a novice litigant. The ES 1 form was served outside the required 2 month period of the most recent alleged prohibited conduct and outside the discretionary  4 month period for reasonable cause and in the absence of any such cause being provided or any exceptional reasons provided for disregarding subsection 2 and the claim was outside the statutory 6 month period to lodge the complaint with the Workplace Relations Commission, I determine that the complaint is statute barred.

Section 38 A states:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

However on the facts detailed in the complaint form there are no facts given that constitute a prima facie case. This test requires that the complainant would detail facts that show (based on the ground being relied upon that he was treated less favourably than another comparator) and they indicate that there is a real possibility of discrimination and so raise an inference of discrimination. The test does not have  to show a real probability of discrimination; but the facts must have a significance that give rise to a presumption of discrimination that in turn must be rebutted. That threshold has not been met in this case.

CA-00028009:

This complaint was lodged with Workplace Relations Commission on the 28th April 2019 when the most recent alleged prohibited conduct took place on the 29th May 2018. It should have been lodged on the 27th October 2018. There is no reasonable cause provided to explain why the delay occurred. For this reason I determine that the complaint is statute barred.

Section 38 A states:

38A. — (1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

However on the facts detailed in the complaint form there are no facts given that constitute a prima facie case. This test requires that the complainant would detail facts that show (based on the ground being relied upon that he was treated less favourably than another comparator) and they indicate that there is a real possibility of discrimination and so raise an inference of discrimination. The test does not have to show a real probability of discrimination; but the facts must have a significance that give rise to a presumption of discrimination that in turn must be rebutted. That threshold has not been met in this case.

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. However, section 21 of the Act provides that a complaint must be made within the required statutory periods and may only be extended based on reasonable cause or for exceptional circumstances where it is reasonable to do so. . Section 22 of the Act provides that a complaint may be dismissed at any time if an opinion is formed that the complaint is misconceived.

Dated:   27-09-21

Workplace Relations Commission Adjudication Officer:  Brian Dalton

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