Complainant

Respondent

Anonymised Parties

Complainant

Public Health Organisation

Representatives

Self-Represented

Ms. Catherine Kelly, Mason Hayes & Curran

Act

Complaint Reference No.

Date of Receipt

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

CA-00036616-001

09/06/2020

On 9th June 2020, the Complainant lodged the present complaint with the Commission. Herein, he alleged that the Respondent had discriminated against him on the grounds of gender. In particular, he alleged that a social worker for the Respondent made disparaging comments to him during an interview that she would not have made to a person of a different gender.

A hearing in relation to this matter was convened and finalised on 4th November 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

At the outset of the hearing the Respondent raised three preliminary objections to my jurisdiction to hear the matter as presented. Firstly, they alleged that the Complainant had not met the statutory requirements for the referral of the complaint. Secondly, they alleged that the notification was received out of time. Finally, the Respondent submitted that they did not provide a “service” to the Complainant within the meaning of the Act, and consequently the application should fail. It was agreed between the parties that these preliminary issues should be examined prior to the substantive complaint.

Given the sensitive nature of the Respondent’s activities, I utilised by discretion to anonymise the names of the parties in the published decision.

The Respondent submitted that the Complainant had not complied with the prescribed statutory requirement for the lawful referral of a complaint under the Act.

In particular, the Respondent referred to Section 21(2)(a) of the Act. In this regard, the Respondent submitted that the Complainant had neither notified the Respondent in writing of the nature of the allegation or the Complainant’s intention to seek redress under this Act within the prescribed time period.

By response, the Complainant submitted that he had complied with the prescriptive requirement of the Act regarding referral. In particular, he referred to correspondence of 1st March 2020, that outlines his allegation of discrimination, the latest such incident being 14th February 2020.  The Complainant submitted that correspondence satisfied that conditions set out in Section 21, and was referred within the statutory timeframe.

Section 21(2) of the Act (as amended) provides that,

“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”.

In the present case it is agreed that the last date of alleged discrimination was 14th February 2020. The correspondence referred to by the Complainant was issued to the Respondent some 27 days later, and consequently satisfies the time requirement set out in Section 21(2)(A).

Thereafter, it is the position of the Respondent that this correspondence satisfies neither subsection (i) or (ii). In this regard, it is submitted that the correspondence neither sets out the nature of the allegation nor the Complainant’s intention to invoke the present Act.

In relation to the first subsection, I note this correspondence is written in the form of a general grievance regarding the activities of the Respondent entity. Herein, the Complainant alleges a litany of failures on the Respondent’s part, most of which are attributed to an individual social worker. It is alleged that this individual accused the Complainant of being controlling, made statements regarding the care of minors that were not grounded in fact and missed scheduled appointments without good cause. Following on from the same, the Complainant alleges that facts are being misrepresented, that he has been treated appallingly and that the family’s privacy has been breached. The correspondence closes with a request the Respondent visits the Complainant to discuss the matter further.

By his complaint form dated 9th June 2020, the Complainant outlines that he believed that the was discriminated against on the grounds of gender as the social worker made statements to him that she would not have made to a person of a different gender. Having reviewed the correspondence of 1st March, it is apparent that the nature of this allegation was not set out at this time. The correspondence does state that the complainant feels generally “discriminated against” regarding the treatment, but does state on what grounds he felt discriminated and what particular actions constituted such discrimination.  The requirements of Section 21(a)(i) mandates that an applicant must set out, at a minimum, the “nature” of the allegation. I find that the correspondence of 1st March set out a series of general grievances against the Respondent, but does not set out the nature of the Complainant’s later allegation under the Equal Status Acts.

Notwithstanding the same, I note that this correspondence is silent as to the Complainant’s intention to seek redress under the present Act. This correspondence is in the way of an internal complaint regarding the alleged poor treatment to which the Complainant was subject. No mention is made of any form of redress under this Act, or any external body. This redress envisioned by the correspondence is a further visit by the Respondent to discuss, the purpose of which is presumably to resolve the complaint.

Having regard to the foregoing, I find that the correspondence of 1st March 2020 did not meet the prescribed requirements set out in Section 21(2) of the Act.

 Notwithstanding the foregoing, the Complainant requested an extension of time for such notification under Section 21(3)(A)(i). He submitted that he did not invoke the present Act with the Respondent as he was initially unaware of his responsibility to do so. He stated that he received advice from an independent third party, and as soon as the same was received, he issued correspondence dated 7th May 2020 complying with the requirements of Section 21(2).

The Respondent submitted that the Complainant had not demonstrated “reasonable cause” so as to extend the time under Section 21(3)(A)(i). They further submitted that this correspondence did not meet the requirements of Section 21(2) in any event.

Section 21(3)(a) provides that,

“On application by a complainant the Director of the Workplace Relations Commission 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”

In circumstances whereby the last date of alleged discrimination was 14th February 2020, an extension of time as envisioned by Section 21(3)(a) would increase the time for referral to 14th June 2020, and consequently encapsulate the Complainant’s correspondence of 7th May 2020, which he submits satisfies the criteria set out in Section 21(2).

The test regarding the establishment of “reasonable cause” is set out in the matter of Cementation Skanska v Carroll, DWT 38/2003. Here, the Labour Court 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.”

In the instant case, the Complainant has sought to ground such an application on the fact that he was initially unaware of the requirement to do so. He submitted that as soon as he became aware of this requirement, he issued correspondence to the Respondent.

In the matter of Minister for Finance v Civil and Public Services Union and Others [2007] 18 ELR 36, Laffoy J. held that,

“…under the established jurisprudence in this jurisdiction lack of knowledge or awareness on the part of the claimant, or the absence of a legal precedent which indicates, that as a matter of law, a claim will have a successful outcome does not prevent a statutory limitation period from starting to run.”

In the matter of Globe Technical Services Limited and Kristin Miller (UD/17/177), the Labour Court held that,

“It is settled law that ignorance of one’s legal rights, as opposed to the underlying facts giving rise to a complaint, cannot provide a justifiable excuse for failure to bring a claim in time.”

Having considered the Complainant’s submission in this regard, I cannot find cause to depart from this authorities or the well-settled legal principle involved. As a consequence of the same, I find no reasonable cause to extend the consignable period for the notification of the complaint.

Having regard to the same and the outcome of the prior preliminary decision, I find that the Complainant has not complied with the requirements for the notification of the complainant prescribed in Section 21(2). Consequently, I find that his complaint is not well-founded, and the Complainant’s application fails.

I find that his complaint is not well-founded, and the Complainant’s application fails

Notification, Reasonable Cause