ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00031924
Parties:
| Complainant | Respondent |
Parties | Ken O'Driscoll | Cork University Maternity Hospital |
Representatives |
| Emily Sexton Comyn Kelleher Tobin 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-00040320-001 | 08/10/2020 |
Date of Adjudication Hearing: 17/05/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 21 of the Equal Status Act 2000 (as amended) an individual may seek redress in respect of any prohibited conduct that has been directed against him or her by referring a case to the Workplace Relations Commission. It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. This Notice in writing shall be brought within two months of the said prohibited conduct or the last instance of same.
A Respondent may choose to reply with an explanation for the treatment by returning the attached ES 2 Form.
Pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of investigation into claims of discrimination and I have heard (where appropriate) interested parties and have considered any relevant documentation provided in advance of the hearing and in the course of the hearing. At the conclusion of any such investigation I shall make a decision, and if in favour of the Complainant I shall provide for redress (s.25 (4)).
Generally, discrimination under this Act is taken to have occurred where a person is treated less favourably that another person is (or would be) treated and by reason of any of the discriminatory grounds (as specified).
Broadly, the Equal Status Act prohibits discrimination in the context of buying and selling goods from and to the public (or a section of the public) and also in the context of using and/or providing services available to the public (or a section thereof).
As noted, and pursuant to Section 25 of the Equal Status Act 2000 I have had the within matter referred to me by the Director General for the purpose of investigation into claims of discrimination.
In relation to the applicable burden of proof, section 38A of the Acts is applicable to all complaints of discrimination under the Equal Status Acts and requires the Complainant to establish, in the first instance, facts from which a discrimination can be inferred. It is only when such a prima facie case has been established that the onus shifts to the Respondent to rebut the inference of discrimination.
Under Section 27(1) of the Act redress may be ordered where there has been a finding in favour of the Complainant. Redress can include compensation for the effects of the prohibited conduct concerned or can take the form of an order that persons specified take a specific course of action.
Background:
The Complainant herein issues a workplace relations complaint form on the 8th of October 2020. The Complainant makes the case that he was subjected to discriminatory treatment arising out of his gender, his Civil Status, and his marital status. |
Summary of Complainant’s Case:
The Complainant says he was discriminated against on the 16th of May 2020 when he had presented at the Maternity Hospital with his three-day old daughter for a routine ‘heel pick test’. |
Summary of Respondent’s Case:
The Respondent made the case that this claim is out of time, and in any event the Hospital was constrained by law from performing any invasive teat in the absence of consent from a legal Guardian – as recognised in law. |
Findings and Conclusions:
I have carefully listened to the evidence adduced by the Complainant and the Respondent herein. The Complainant says he was discriminated against on the 16th of May 2020 when he had presented at the Maternity Hospital with his three-day old daughter for a routine ‘heel pick test’. The Hospital staff informed him that nobody in the Hospital could perform the test in circumstances where, in law, the Complainant had not yet been made the legal Guardian of the Infant. The mother was not present at the time. I accept as a matter of law that any person who is under the age of 16 can only have medical, surgical and/or dental treatment where the consent of the legal guardian has been obtained in advance. I also recognise that where the parents of children are not married it is only the birth mother who is automatically assigned the status of legal Guardian. The father’s status (of legal guardian) will be assigned in agreement with the mother (through a process of Statutory Declaration) or by Court Order on application to the District Court. Before making a final determination on the law herein, the Respondent has asked me to have some consideration to the operation of Section 21(2)(a) of the Equal Status Act 2000 -2015. That Section imposes an obligation on the Complainant to notify the Respondent (in Writing) of the allegation of prohibited conduct within two months of the last instance of that prohibited conduct having occurred. The Respondent should be notified of the nature of the allegation being made, seek information, and indicate what the Complainant’s intentions are if not satisfied with any response received. If the Complaint concerning the prohibited conduct is not brought within two months the time limit can be extended to four months for reasonable cause. Exceptionally, where it is considered fair and reasonable neither of these time limits will apply pursuant to Section 21 (3) (ii). I have taken on board the reference made by the Respondent to the wisdom of Laffoy J. in the Minister for Finance -v- CPSU (2006) IEHC 145 where she stated : “..the established jurisprudence in this jurisdiction is that knowledge or discoverability of a material fact is not the trigger which sets a statutory limitation period running, unless the legislature expressly so provides. This is clearly illustrated by the decision of the Supreme Court in the medical negligence case of Hegarty -v- O’Loughran 1 IR 148 “ There can be no doubt that the need to inform the proposed Respondent of an allegation of discrimination within a two-month period of the last act is mandatory. This did not happen in this instance. The Complainant herein only advised the Respondent of the Complaint (by way of the ES1 form) on the 7th of October 2020 – nearly five months after the alleged incident (the 16th of May 2020). I agree with the proposition put forward by the Respondent that no information has come to light which would suggest that the Complainant is entitled to a dispensation from abiding with the 2 month timelines set down by Statute. No explanation has been given to me and the Complaint is therefore out of time. In those circumstances the Complaint is not well founded. I have sympathy for the Complainant who, in that instant, believed he was being purposefully assigned a lesser parenting role to his daughter than his partner had. I do, however, recognise the well-established law under which the Hospital and it’s staff felt compelled to 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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 CA-00040320-001 The Complainant under the Equal status Acts fails by reason of the Complainant’s failure to abide by the Statutory obligations set out in Section 21. The Complaint is not well-founded.
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Dated: 15/09/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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