Complainant

Respondent

Parties

Edson Simoa  De Morais

Blue Silver Merchants Unlimited Company McInernys Supervalu

Representatives

Joseph O'Hara O'Hara Solicitors

Daniel Shields V.P. Shields Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00037770-001

12/06/2020

The complainant alleges that an act of discrimination occurred on 19/01/2020.  He was a customer in the respondent’s shop premises and when he returned home, he observed what he believed was a counterfeit €10 note.  He returned to the premises and the employee who served him was dismissive.  He also had dealings with a supervisor or manager who, it is alleged, laughed at him.  He made attempts through his legal representative to obtain an apology and the respondent denied that it had issued a counterfeit note and therefore no apology would be issued.  The complainant submitted his complaint to the Workplace Relations Commission (WRC) on 12/06/2020.

At the hearing a preliminary matter was raised in relation to the fact that the complaint was submitted to the WRC outside the prescribed time limits.  The complainant sought an extension of the two-month time limit for notifying the respondent to four months on the basis that the COVID-19 pandemic prevented him from doing so.

At the hearing the complainant’s legal representative requested an adjournment in order to prepare and submit written submissions in relation to this point.  This was facilitated on the basis that the respondent’s legal representative would be copied on any submission, and they would be given a reasonable period of time to make a written response to the complainant’s submission.  It was also pointed out to the parties that a decision on the preliminary point, and this could result in the hearing being reconvened or alternatively had the potential to dispose of the entire matter.  Both parties confirmed their understanding of this approach.

The alleged act of discrimination on the grounds of race occurred on 19/01/2020.  The complainant sought redress for a customer service issue.  The complainant asked for the CCTV to be checked and this was denied.  The complainant contacted An Garda Siochana who visited the premises on the afternoon of 19/01/2020.

The complainant instructed his solicitors to correspond with the respondent and a letter was sent on 10/02/2020 requesting an apology and the retention of CCTV for potential proceedings.  The respondent replied on 14/02/2020 through their legal representatives but did not deal with the request in relation to the CCTV.  A further letter was issued to the respondent on 25/02/2020 and a request was also sent to An Garda Siochana requesting the results of their investigation.  A reply was received from An Garda Siochana on 25/03/2020 confirming that their investigation had concluded and no further Garda action was to be taken.

The first case of Coronavirus was reported in Ireland on 28/02/2020 and the Government mandated closure of schools, colleges etc took place on 12/03/2020.  This was followed by the stay-at-home lockdown and a 2km limit for non-essential journeys.  An equal status notification (ES1) was sent to the respondent on 30/04/2020 and as a replying ES2 was not received within one month a complaint was submitted to the WRC on 12/06/2020.  The complainant grounds his application for an extension of the time limit from 2 months to 4 months on the basis that the delay by the respondent in relation to the CCTV severely hampered the preparation of the ES1 form.  The reply from the respondent in relation to the status of the CCTV was not received until 25/03/2020.  At that time the notification time had expired the exceptional circumstances of the pandemic adversely affected the complainant’s ability to obtain further legal advice.

A number of legal principles were also outlined on behalf of the complainant.  Section 21(3)(i) of the Equal Status Act states that a complainant may make an application to the Director of the Workplace Relations Commission for an extension of the time limit and upon reasonable cause extend the two-month period to a period not exceeding four months.  The leading case in relation to reasonable cause is Cementation Skanska v Carroll DWT0338.  This case sets out that there is an objective test and that the circumstances which are relied on must both explain why the delay occurred and that a causal link exists between the circumstances cited and the delay.  It was submitted on behalf of the complainant that the Alert One Securing Ltd v Khan, [DWT1572] the Labour Court found: “In that regard it is well settled that material misrepresentation by a party, which caused or contributed to a delay in initiating a claim can constitute reasonable cause which both explains the delay and provides a justifiable excuse for that delay”.  The complainant’s representative submits that on that basis alone “the misrepresentation of the preservation/or otherwise of the CCTV, constitutes a reasonable cause for the Complainant’s delay” and in line with Skanska had those circumstances not been present the Complainant would have initiated his complaint on time.  It was also submitted that a comparison can be found in the case of ADJ-00033548 wherein the complainant demonstrated a reasonable cause for delay due to “the difficulty in obtaining clear advice and assistance during the Pandemic”.

The complainant also contends that as the respondent was on notice by letter dated 10/02/2020 that the events of 19/01/2020 were known to be disputed and that the respondent could not reasonably be surprised or prejudiced by the Complainant’s ES1 notification being delivered within 4 months.

The respondent replied to the complainant’s submissions and submited the following:

1.       The Complainant first introduced the issue of the CCTV on 13/01/2022.  This was in the context of the failure to submit an ES1 within the time allowed.  Prior to that date the complainant was seeking to solely rely on the COVID-19 Pandemic as the grounds for the delay.

2.       The Respondent received a letter “not earlier than twenty-three days” after the alleged incident and in that letter the complainant’s solicitor stated that “CCTV coverage should be preserved by you”.  The CCTV operates on a cycle basis and was no longer available at that time.  The Respondent was on notice that the Complainant intention was to pursue a claim for defamation.  The Gardaí did not request to view or preserve the CCTV.  The Respondent notes that in the letter dated 10/02/2020 he was not asked if the CCTV was available and the absence of any reference in the Respondent’s detailed response does not constitute misrepresentation.

3.       The facts which the Complainant relies upon to ground the very serious allegation of racial discrimination were known to the Complainant when he consulted with his solicitor prior to 10/02/2020.  The complainant, through his solicitor, in later correspondence stated that the CCTC was required to verify his version of events.  The Complainant has failed to set out any causal link between the CCTV and the delay.

4.       In relation to the Complainant’s contention that the Respondent was on notice by way of letter dated 10/02/2020 that the events of 19/01/2020 were known to be disputed and that the Respondent could not reasonably be surprised or prejudiced by the Complainant’s ES1 notification, the respondent reiterates that the version of events set out in that letter neither allege racial discrimination nor give any indication that such an allegation will be made.  The requirements for such notification are set out in Section 21 of the Acts and the Complainant cannot now make the assumption that the Respondent would not have been surprised by the allegation purely on the basis of the existence of one of the discriminatory grounds as set out in the legislation.

5.       The Respondent disagrees with the comparison with the case of ADJ-00033548, Claire Humphreys v Gilford Montessori School Limited.  The facts of this case bear no resemblance to the Complainant’s case with the relevant period during which Ms Humphreys should have brought her case actually occurring during the COVID-19 Pandemic.  In reaching a decision to extend the time in that case, the Adjudicator states that “based on the exceptional circumstances that pertained during the Pandemic and based on the unique facts of this case I determine that the Complainant has demonstrated reasonable cause for delay …”.  The Adjudicator then outlines eight objective circumstances which were relied upon and taken into consideration.

6.       The Respondent notes that in the case of Alert One Security v Taimoor Khan DWT1572, which is relied upon by the Complainant in relation to misrepresentation as a grounds for reasonable cause, the facts of that case were that the delay occurred where assurances were given to the Complainant by the Respondent that he was either receiving his legal entitlements or that those entitlements wold be met by the Respondent.

7.       It is not the Respondent’s position that the COVID-19 Pandemic or misrepresentation could not be the basis for establishing reasonable cause for the extension of time.  It is the Respondent’s position that such grounds in the circumstances of this particular case do not constitute reasonable cause.

8.       The Respondent submits that the Complainant has not set out any causal link between the circumstances cited and the delay.  The assertion that had the alleged misrepresentation not taken place the Complainant would have initiated the claim on time.  This is a bold assertion and without any foundation.  The Complainant has not explained the relevance of the CCTV in establishing racial discrimination.

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 such a matter before the Workplace Relations Commission that the individual Complainant shall already have notified the Respondent in writing (Form ES1) 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 incident of such conduct.

The Equal Status Act prohibits discrimination in the context of buying or 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). In general terms discrimination under this Act is taken to have occurred where a person is treated less favourably than another person is (or would be) treated and by reason of any of the discriminatory grounds as specified in the Act.

Relevant Law

Section 21(2) of the Act 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 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.

(b)    In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, shall have regard to all the relevant circumstances, including –

(i)                  The extent to which the respondent is, or is likely to be, aware of the circumstances in the prohibited conduct occurred, and

(ii)                The extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

(5) The Minister may by regulations prescribe the form to be used by a complainant and the respondent for the purposes of subsection (2).

(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 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.

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6) (A) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

In evaluating the submissions of the parties in this case, I must first consider, as a preliminary matter, whether this complaint is properly before me.  The complainant has failed to comply with the statutory time limit of two months, or, for reasonable cause, four months, for notifying the Respondent of his intention to submit a complaint.  This requirement is outlined at Section 21(2) of the Equal Status Act 2000 (“the Act”).

In relation to the preliminary matter raised regarding the notification requirement I note that the complainant submitted the ES1 form to the Respondent on 28/04/2020 arising from an incident which is alleged to have occurred on 19/01/2020.  Section 21(3)(a)(ii) of the Act provides that, “exceptionally”, where I am satisfied that it is fair and reasonable, I may dispense with the requirement for a complainant to notify the respondent of their intention to make a claim within four months.  The complainant’s explanation that there was misrepresentation on behalf of the Respondent in relation to the CCTV and that the COVID-19 Pandemic affected his ability to obtain further legal advice.

Based on the facts of this case I do not accept that this explanation for the delay amounts to exceptional.  The alleged incident occurred on 19/01/2020 and it was not until 28/04/2020 that the complaint of racial discrimination was first notified to the Respondent and in circumstances where the Complainant’s legal representatives had previously written to the Respondent.  I do not accept that the Complainant was unable to obtain legal advice.  He had the benefit of legal advice from the outset, and I am satisfied that the Complainant has not established that there is a causal link between the CCTV, lack of legal advice and the delay in issuing the form ES1.

I find that this complaint is not properly before the Workplace Relations Commission as it has not been brought within the requisite time limits provided by Section 21 of the Acts, including those for giving notice of a complaint and referring the complaint.

As the form ES1 was submitted outside the permitted time limit I have no jurisdiction to hear the complaint as submitted under the Equal Status Act, 2000.

Notification requirement.  Equal Status.