Complainant

Respondent

Anonymised Parties

Learner driver permit applicant

Driver licensing authority

Representatives

  Self -represented

 McCann Fitzgerald. Ms Shelley Horan, B.L.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036035-001

05/05/2020

The complainant submitted a complaint that the respondent contravened section 3(a)of the Equal Status Act 2000   which prohibits discrimination on the grounds of race as defined in section 3(2)(h) of the Act in refusing to grant him a learner driver permit.

The complaint is an asylum seeker, a Pakistani national living in Ireland since 2015 and working as a full-time chef in a restaurant in the midlands.

The last act of discrimination occurred on 24/1/2020.

He submitted his complaint to the WRC on the 4 September 2020.

The respondent raised three preliminary issues:

1.       The Respondent submits that the Respondent named on the complaint referral form is not the correct respondent.

2.       The complaint is time barred.

3.       The decision of the High Court (Creedon J) in A.B. v Road Safety Authority [2020]

IEHC 217 which binds the WRC.

1.  Incorrectly named respondent.

The incorrectly named respondent, the National Driver Licence Service (“NDLS”) provides a service  on behalf of the correct Respondent since September 2013. The correct respondent is the Road Safety Authority. The Respondent to this complaint is incorrectly named and is a registered trademark of the Respondent and, accordingly, does not have legal personality and therefore cannot properly be a party to this or any complaint. Accordingly, the complaint must be dismissed.

2.  The complaint is time barred.

The respondent points to section 21(6) of the Equal Status Acts which requires that a complaint must be submitted within six months of 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. The complainant’s complaint form was submitted on the 4 September; the date of the most recent occurrence of alleged discrimination was dated the 24 January 2020. No application by the Complainant to extend the limitation period for “reasonable cause” as provided for in s.21(6)(b) has been made. The Respondent relies on the Labour Court determination, in Cementation Skanska v Carroll (DWT 38/2003 which held that            

“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”.

So also, in Salesforce.com v Leech (EDA1615), the Court held that

“the test places the onus on the applicant seeking an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay…………. If the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay”.

 The Respondent points to the Complainant’s ES.1 form, which included the section “Information on Using Form ES.1” section 7 and which alerts a complainant to the applicable time limits for the submission of a complaint to the WRC.

The respondent submits that the absence of an application from the Complainant for an extension of time under s.21(6)(b), and in the absence of the Complainant having made out the high threshold of “reasonable excuse” warranting the granting of such an extension, the Adjudicator must find that within complaint is outside of the statutory limitation period and must be dismissed as the WRC has no jurisdiction to hear the complaint.

3.   The decision of the High Court (Creedon J) in A.B. v Road Safety Authority [2020] IEHC 217.

The respondent relies on the above decision, a case materially identical in all respects to the within complaint. The complainant in that case was an asylum seeker who complained before the WRC of race discrimination pursuant to the Equal Status Acts arising from the refusal of the Respondent to accept the complainant’s application for a driving license. The WRC decision was appealed to the Circuit court and onwards to the High Court who found that the refusal of the same respondent to grant a driving licence in the absence of evidence of normal residence did not amount to discrimination on grounds of race contrary to the provisions of the Equal Status Acts 2000-2015.  

This decision binds the WRC.

1.        Incorrectly named respondent.

The complainant states that he put the correct name of the respondent on the ES.1 form which he submitted on the 13 March 2020 and asks that this be accepted as a basis to correct the respondent’s name.

2.        The complaint is time- barred.

The complainant states that he believes the ES.1 form submitted on 13 March, which set out his complaint of discrimination brings his complaint within the time limits and that his complaint should be accepted.

3.        The decision of the High Court (Creedon J) in A.B. v Road Safety Authority [2020]

As has been stated the complainant was unrepresented. The precedence of the High Court decision over Adjudication decisions which had been relied upon by the complaint was explained to him.

The complainant advised that by the date of the hearing he had acquired the necessary residency requirements to secure a driving licence, but he asked that I consider how the residency requirement to secure a permit disproportionately impacted upon him until 2021 as a non- national relative to an Irish person. The requirement to fulfil a condition to secure a permit which was necessary for his continued employment disadvantaged him and imposed travel costs in excess of those in possession of driving permits.

The complainant asked that I consider what he believes is the justice of his complaint based on his circumstances. He is an asylum seeker, living in the north-west of the country, currently working in the midlands, having worked in another of the company’s restaurant until October 2019. His weekly transport costs rose to €110 a week due to the refusal of the Road Safety Authority to grant him a learner driving licence due to the fact that he has not secured residency. This requirement for proof of normal residence can only affect non- nationals and is therefore discriminatory in that it imposes extra travel costs and limits opportunities for non- nationals to secure licences and employment outside of areas where public transport opportunities are scarce.

1.    Incorrectly named respondent.

I must first decide whether the Respondent named on the complaint referral form can be corrected so as to identify the correct service provider.

In making my decision I am guided by the Superior Courts which have held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.

Order 15, Rule 13 of the Rules of the Superior Courts (S.I. No. 15 of 1986) makes provision for the amendment of proceedings initiated in the High Court in which parties are improperly named.

In County Louth VEC –V- Equality Tribunal [2009] IEHC 370, the High Court found that:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.”

There is no dispute about whether the complaint is properly before the WRC and that the correct Respondent has submitted to the jurisdiction of the WRC. I find, therefore, that neither party to the claim would be prejudiced by allowing the amendment of the name.

Accordingly, I am prepared to amend the name of the Respondent on the complaint referral form. This decision names the correct respondent.

2.          The complaint is time-barred.

The complainant submits that I can accept that the ES.1 form which contains the correct name of the respondent and which was submitted within 3 months of the date of last-named incident of discrimination meets the obligation set out in section 21 (6) to lodge a complaint within 6 months in that the respondent was on notice of the complaint.

In the alternative, the complainant submits that that the fact that the respondent was on notice well within the time limits allows me to extend the time limits.

Section 21(6) of the Equal Status Acts requires that the complainant submit his complaint to the WRC within 6 months of the date of the most recent incident of discrimination. Section 21(6)(b) of the Equal Status Acts allows for an extension of a further six months where “reasonable cause “for same exists. The leading case on what constitutes reasonable cause is found in Cementation Skanska v Carroll (DWT 38/2003) which determined that it is for the claimant “to show that there are reasons which both explain the delay and afford an excuse for the delay. The Labour Court also added “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”. 

The last act of discriminated occurred on the 24/1/2020. The complainant submitted his complaint to the WRC on the 4 September 2020. I am unable to accept that a misconception about the ability of the ES.1 form to double up as a notification to the WRC amounts to reasonable cause for a delay or that it serve as a reasonable cause to extend the time as per section 21(6)(b) of the Acts given that the form contains the instruction to submit the complaint to the WRC within 6 months of the last act of discrimination.

I therefore find that I do not have jurisdiction to hear this complaint.

1.       The decision of the High Court (Creedon J) in A.B. v Road Safety Authority [2020] IEHC 217.

This decision concerned an asylum seeker who like the complainant in the instant case, was unable to provide the evidential requirements of normal residence which are required by virtue of Regulation 20(1) of the Road Traffic (Licensing of Drivers) Regulations 2006 (S.1 537/2006, for the acquisition of a driving licence. While his complaint of discrimination on grounds of race initially succeeded in a complaint to the WRC, this was overturned by the Circuit Court. That decision was appealed to the High Court where Creedon J upheld the Circuit Court’s decision that the respondent did not discriminate against the appellant on grounds of race. He found the complaint

” to be misconceived as to what was at issue which was the meaning and effect of the statutory enactment and not the individual treatment of the Appellant by the respondent”                  

He went on to state that

“The actions of the Respondent as they relate to the Appellant are required by legislative enactment and cannot be the subject of an adverse finding pursuant to the Equal Status Acts”.

I am bound by this decision of the High Court.

I do not have jurisdiction to hear this complaint of discrimination under the Equal Status Acts 2000-2015.

This decision is anonymised.

CA-00036035-001. Complaint under Section 21 Equal Status Act, 2000.

I find that I do not have jurisdiction to hear this complaint.

I find that I do not have jurisdiction to hear this complaint.

Time barred complaint; binding decisions of superior courts. Anonymised decision.