Complainant

Respondent

Parties

Ewelina Boral

Department of Employment Affairs and Social Protection

Representatives

Séagh Mac Siúrdáin, FIOS Consultants

Jennifer Murray, Office of the Chief State Solicitor

Act

Complaint Reference No.

Date of Receipt

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

CA-00041531-001

14/12/2020

On October 19th 2020, in accordance with the provisions of section 21(2) of the Equal Status Acts 2000 - 2018 (“the Act”), on behalf of the complainant, Mr Mac Siúrdáin sent an ES1 form to the manager of the Intreo office in Fairgreen Road in Galway.  The form contained a complaint that Ms Boral had been discriminated against when the Department of Social Protection failed to provide her with translation services.  The complaint form indicates that this discrimination had occurred “up to” September 9th 2020.  There was no reply to the ES1 form and, on December 14th 2020, Mr Mac Siúrdáin submitted a complaint to the WRC.  He set out the details of the complainant’s case as follows:

“In 2019 I applied for Jobseekers Allowance as I was returning to work but was unable to secure employment.  The Department of Employment Affairs and Social Protection, Intreo Office in Galway continually made it difficult for me to secure the payment.  In particular, the Department failed to recognise that as a Polish National I have difficulty using English as it is my second language and I had request (sic) the use of the translation services which the Department had access to but I was informed (told), by the interviewing officer, that my English was good enough and no need for the services, this greatly affected my ability to secure the supports needed and caused untold stress to me.”

Chronology of Events Leading to the Complaint of Discrimination

On January 29th 2019, the complainant submitted an application form to the Department of Social Protection for job seeker’s allowance.  She stated on the form that she and her husband had been self-employed.  A member of staff in the Department responded to the application the same day and asked the complainant to provide draft profit and loss accounts for hers and her husband’s self-employed business for the previous 12 months.

Around February 4th 2019, the complainant’s husband filled out the self-employed questionnaire and submitted it to the Department with the required documents.  The complainant did not provide the draft profit and loss accounts which were requested.  Her application was processed on March 15th 2019 and she was refused job-seeker’s allowance.

On April 9th 2019, the complainant met with a social welfare inspector, Ms Nora Coyne, to discuss her application.  Ms Coyne advised the complainant what documents were needed to complete the application process.  During her engagement with Ms Coyne, the complainant did not seek the support of a translator.

On April 28th, the complainant sent an email to the Department and advised that she was facing financial difficulties and she asked them not to ask her to submit any more documents.  A copy of this correspondence was included in the respondent’s book of documents.  Ms Nora Coyne replied to the complainant, telling her that that certain information was required to process her application.

On April 29th, the complainant sent a complaint to the Department, advising that she had not received a reply to her application.  On May 1st, she sent an email to Ms Coyne, telling her that she was going on holidays and that she needed an extension of time to provide the necessary documents.  Ms Coyne replied on May 2nd and told the complainant that she would deal with her case as a priority as soon as the necessary information was provided.  On the same day, in response to her formal complaint, an area manager, Ms Annette Murphy, wrote to the complainant separately, and explained why she was required to produce the documents that she had failed to produce.

In the weeks that followed, the Department’s staff invited the complainant and her husband to attend meetings in its offices to assist them with their application.  On at least four occasions, the complainant and / or her husband either didn’t turn up or they advised the staff that they were too busy to attend.  On July 9th, the complainant was advised that her application for job-seeker’s allowance was unsuccessful.  She appealed this decision and her appeal was decided on February 5th 2020.  A copy of the determination was included in the Department’s book of papers.  In its decision, the Department directed the complainant to obtain the original business accounts prepared by their accountant and to submit them to the local office who would then conduct a full review of their claim.

On February 26th 2020, the complainant and her husband attended at the counter of the Intreo office in Fairgreen Road in Galway.  They were attended to by an executive officer, Mr Gary Lucy.  Mr Lucy asked the complainant if she had the self-employed accounts which were requested previously.  The complainant replied that she hadn’t got the accounts and Mr Lucy informed her that he couldn’t conduct a review in the absence of that information and that without the documents, she would have to submit a new application.  During her interaction with Mr Lucy, the complainant did not seek the assistance of a translator.

On March 14th 2020, the complainant complained to the Employment Exchange section of the Department in relation to her exchange with Mr Lucy and the continued request for the relevant documentation.  In her letter, she said that she felt that she was being discriminated against and that, in all her involvement with the Intreo office, “translation services were not used.”  The Intreo office manager, Ms Anna Shorten, contacted the complainant by telephone the same day and she advised her to submit the documents that had been requested.  She told the complainant that she did not have to make a new application and that all that was required was her accountant’s evidence of her accounts for her self-employed income for the 12 months prior to January 2019, when she made her initial claim.  During the hour-long telephone conversation with Ms Shorten on March 14th 2020, the complainant did not indicate that she needed help with translation.

With no further communication from the complainant, and when the documents had still not been provided, Ms Shorten phoned the complainant twice.  When she got no response, on April 15th, she wrote to the complainant again, repeating the requirement for her to produce her self-employed accounts.

On May 5th 2020, Mr Mac Siúrdáin wrote to the Department, seeking a review of the complainant’s application for job-seeker’s allowance, alleging that the Department had “failed to use the translation services available to it” and claiming that Ms Boral was being discriminated against.

On May 14th 2020, the area manager, Mr Ivan Martin, wrote to Mr Mac Siúrdáin advising him that Ms Shorten had been in touch with the complainant to tell her that she had been mistakenly requested to submit a new application and that what was required was her accounts for the 12 months prior to January 2019 when she submitted her application.

On June 2nd 2020, the complainant submitted documents from her accountant, but not the documents that were requested.  A social welfare inspector, Ms Mairéad Keane, wrote to her solicitor, Mr Benan Fahy and Mr Mac Siúrdáin on June 17th and 23rd, July 29th and August 11th, requesting the correct documents. 

On September 1st 2020, the complainant provided the documents that were requested by the Department to assess her claim for job-seeker’s allowance.  She was granted the allowance and paid arrears of €14,205 in three instalments over a three-week period on September 15th, 22nd and 29th 2020.

On October 20th 2020, Mr Mac Siúrdáin sent the ES1 form to the Department in which he alleged that the last date of discrimination was September 9th 2020.  On the form he submitted to the WRC on December 14th 2020, Mr Mac Siúrdáin said that the first incident of discrimination was April 29th 2019 and the most recent date was September 8th 2020.  The Department’s position is that the complainant had no interaction with any member of their staff on September 8th or 9th and the ES1 form and the complaint to the WRC are outside the relevant time limits for submitting complaints. 

As agreed with the parties at the hearing, in the first instance, as a preliminary issue, I will consider the issue of the time limit for submitting this complaint.

On January 29th 2019, the complainant applied to the Intreo office in Galway for job-seeker’s allowance.  On March 15th 2019, when she failed to provide accounts related to her self-employed income from 2018, her claim was disallowed.

April 29th 2019, which is alleged to be the first date of discrimination, is the date on which the complainant made a complaint to the Department about the difficulties she experienced getting her application for job-seeker’s allowance approved.  With her complaint, she included her email of April 28th, in which she set out the details of her complaint, the reason why she needed job-seeker’s allowance and the effect that not getting the allowance was having on her and her family.

On October 20th 2020, on behalf of the complainant, Mr Mac Siúrdáin sent an ES1 form to the manager of the Intreo office.  Mr Mac Siúrdáin claimed that discriminatory treatment occurred on September 9th 2020 and that it had occurred “up to that date.”  Mr Mac Siúrdáin did not refer to any particular event that took place on September 9th 2020.  On the form he submitted to the WRC on December 14th 2020, he claimed that the latest date of discrimination was September 8th; however, again, he did not refer to any act or event that occurred on that date that caused the complainant to be discriminated against.

As the ES1 form was sent to the Department on October 20th 2020, in accordance with section 21(2) of the Act, the reckonable period for consideration of this complaint is from August 21st to October 20th 2020.  From my examination of the chronology set out above, it appears that the only interaction that the complainant had with the Department during this period was on September 1st 2020, when she provided the documents which were requested by the Department to consider her application for job-seeker’s allowance.  The payment of the arrears commenced on September 15th and the full amount of €14,205 was paid by September 29th.

At the commencement of the hearing on October 27th 2022, Mr Mac Siúrdáin presented a submission on behalf of the complainant in which he outlined the background to her case.  He said that the correspondence submitted by the respondent is accepted as fact, subject to the observations in the report of Ms Barbara Lesniak, which was submitted to the WRC on May 9th.

Mr Mac Siúrdáin said that the delay submitting the ES1 form was because the complainant’s case relates to issues of language and she was anxious not to make her formal complaint until she had exhausted the process of having her application for job-seeker’s allowance considered.  In her case, the process ended with her claim being allowed and the payment of her job-seeker’s benefit and arrears which commenced on September 15th 2020.  Mr Mac Siúrdáin submitted that it would not have been appropriate to commence another process before completing the claim to the Department.  Mr Mac Siúrdáin referred to the decision of my colleague adjudicator, Davnet O’Driscoll, in the case of Claire O’Donoghue v Cian Rowland[1], where Ms O’Driscoll decided to consider Ms O’Donoghue’s complaint, although she submitted her complaint form to the WRC two weeks after the time limit of six months which is set out at section 21(6)(a) of the Act.

Mr Mac Siúrdáin submitted that, if the Department had responded to the ES1 form, the process would have ended there.

Mr Mac Siúrdáin said that the complainant did not keep an exact diary of dates or individuals with whom she was engaging in the Department.  She did not realise she was in a combative process, as she thought that the Department’s purpose was to help and support her and that was not the experience she had.

The complainant found it difficult to identify the individuals with whom she had contact during the process of her application for job-seeker’s benefit and the nature of the discrimination was not immediately apparent to her.  Mr Mac Siúrdáin argued that it is a matter of evidence that each act by the Department amounts to an act of discrimination and that this discrimination was ongoing until the completion of the processing of the complainant’s application.  Mr Mac Siúrdáin asserted that, until the complainant was awarded the full amount of arrears on September 29th 2020, the discrimination was ongoing.  He claimed however, that the award of the arrears has still not restored the complainant to the position she should have been in if the process had been completed within a reasonable time.

As a comparator, it is the complainant’s position that, all beneficiaries of social welfare services outside of the Gaeltacht, being English speakers, would not encounter the difficulty she encountered in her dealings with the Department because they could understand what was being said to them and she could not. 

The failure of the Department to use the translation services available and requested by the complainant has resulted in breaches of the Equal Status Act and Article 21 of the EU Charter of Fundamental Rights.  Because of this failure, the complainant suffered a period of financial hardship and had to borrow money from friends, sell her car, fell into arrears of rent and had to engage professional help.  Without this help, Mr Mac Siúrdáin submitted that she would have been deprived of social welfare support.

Evidence of the Complainant, Ms Ewelina Boral

Responding to questions from Mr Mac Siúrdáin, the complainant said that she applied for job-seeker’s allowance on January 29th 2019.  She said that she then had two meetings with officers from the Department.  She said that at the first meeting with a member of staff, she asked for an interpreter.  At a second meeting, she said that she told Ms Nora Coyne that she didn’t know the English language. 

At the beginning of April 2019, the complainant said that the officers from the Department knew that her understanding of English wasn’t good enough to continue.  She said that she asked for everything in writing.  At the end of April, she received documents.  She said that she was going to Poland to do courses and she wasn’t able to reply to the letter within the requested timeframe.  She said that her husband helped her to reply and she addressed all the queries in her replying emails.  She said that her husband helped her with her dealings with the Department and at the meetings she attended.  She said that she didn’t know what was going on.

At the beginning of May 2019, the complainant said that she sent an email to Ms Coyne in the Department.  She wanted to meet again and to find out how to complete her application. 

When she was asked who refused to provide her with translation services, the complainant named a member of staff at the Intreo office.  I have decided not to name this employee, because the Department’s representative was not notified in advance that this person would be alleged to have refused to provide a translator to the complainant, she was not in attendance at the hearing on any of the hearing days and she was not called to give evidence.

For the Department, Ms Cassidy submitted that no interactions or events took place on April 8th or 9th 2020 which the complainant alleges were the most recent dates of discrimination.  Also, the date that the complainant alleges was the first day when discrimination occurred, April 29th 2019, was the day on which she lodged a complaint about the length of time it was taking to process her application.

As the ES1 was submitted on October 20th 2020, the reckonable period for consideration of a complaint of discrimination is from August 21st until October 20th 2020.  There were no interactions at all between the complainant and the respondent’s staff during that period and the final instalment of the job-seeker’s benefit was paid on September 29th 2020.

In the complainant’s submission furnished to the WRC and to the Department on June 23rd 2022, Mr Mac Siúrdáin submitted that “until such time as the process was completed,” it was not appropriate to send an ES1 form to the Department.  Ms Cassidy argued that this reason has been rejected in the seminal decisions of the statutory tribunals regarding extensions of the time limits. 

Ms Cassidy referred to section 21 of the Act which sets out the two-month time limit for submission of an ES1 form to a respondent and the provision for an extension of time to four months.  A complainant who is attempting to set aside the initial two-month time limit must show some reasonable cause.  In the case of Séamus (James) O’Dwyer v Sword Risk Services Limited[2] where, following from the decision of Mr Justice Costello in O’Donnell v Dun Laoghaire Corporation[3], the Court confirmed that,

“…a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.  The judge pointed out that the reason relied upon must excuse the delay on an objective standard.”

Ms Cassidy submitted that it is not within the gift of a complainant to delay the submission of a complaint to a statutory tribunal simply because they think they are allowed to due to external factors.  In making this submission, the complainant changes “the entire thrust of her complaint,” having stated on her complaint form that she was discriminated against by Ms Shorten on March 14th 2020.  If this was the case, the latest date for submission of an ES1 form was May 14th 2020.  By making a retrospective attempt to bring her complaint within the statutory time limit, Ms Cassidy argued that the complainant “now fatally confirms that she took the subjective view that she didn’t have to adhere to the statutory time limit to lodge her ES1 form, and by consequence, her WRC form, which should have been lodged by mid-September 2020 at the latest.”

Notwithstanding the fact that the timing of the payments of the arrears of job-seeking’s allowance was because the payment could not be executed until the complainant submitted the required documents to establish that the statutory criteria for the payment was satisfied, the payment of the arrears is not related to her ability to lodge her complaint forms on time.  Ms Cassidy argued that this is especially the case, when the complainant had the benefit of FIOS consultants’ professional advice related to the deadline for making a claim.  Ms Cassidy argued that “it is illogical, wholly disingenuous and vexatious in the extreme for the complainant to argue that she was waiting for the respondent to pay her” at the end of the “process” before she submitted the complaint forms, and then to argue that the non-payment of the arrears was the basis on which she sought an extension of time.

Ms Cassidy referred to the seminal decision of the Labour Court in extension of time limit applications, Cementation Skanska (formerly Kvaerner Cementation) Limited v Carroll[4].  I will consider the application of this precedent in my findings in the next section.

Following the authority of this case, Ms Cassidy submitted that for the complainant to wait for the Department to pay her arrears before suing for discriminatory treatment on the ground of race is irrational or absurd.  She said that “it is remarkable that this reason has been confirmed in writing.”  Although the complainant’s case has been referred to by Mr Mac Siúrdáin as “a landmark case,” Ms Cassidy asserted that this has not been borne out by the law or the facts and that it is an entirely unsubstantiated claim on which significant resources have been expended at a cost to the taxpayer.

If the complainant adopted this subjective position, to wait until the end of her application process before submitting an ES1 form, Ms Cassidy said that it should have been explained to the complainant that, as a matter of law, such a subjective view would not be grounds to justify an extension of the time limit.  This is because the lodgement of a complaint on an ES1 form or to the WRC is not related to the conclusion of any other process.  If discrimination has occurred, it cannot be reversed, it crystallises at the time of the discriminatory conduct and no process can dislodge or change that.

Ms Cassidy argued that the precedent case submitted by the complainant, O’Donoghue v Rowland (footnote 1), is not relevant because it deals with a different set of circumstances and, in that case, the delay in the submission of the ES1 form was two weeks.

Mr Mac Siúrdáin has submitted that, if the Department had replied to the ES1 form, “the process could have ended there.”  Ms Cassidy asserted that there is no legal obligation on a respondent to reply to an ES1 form, and the fact that the Department did not respond does not justify the late submission of the form in the first place.

The assertion by Mr Mac Siúrdáin that the complainant did not keep an exact diary of dates and meetings is, as asserted by Ms Cassidy, “another attempt by the Complainant to conflate and confuse matters in circumstances where it is clear that her case is statute barred.”  The issue here is not an unidentified process that the complainant retrospectively relies on to attempt to overcome the fact that her case is clearly statute barred, but, on the contrary, a specific allegation of discrimination which is identified by the complainant, under the guidance of her advisors.  As she states on the WRC complaint form:

“…I had request (sic) the use of the translation services which the Department had access to but I was informed (told), by the interviewing officer, that my English was good enough and no need for the services, this greatly affected my ability to secure the supports needed and caused untold stress to me.”

Ms Cassidy argued that this statement is the only “issue in this case” where it pertains to alleged discriminatory treatment, which the Department denies.  The complainant cannot remember when or to whom she spoke and the Department reviewed all its interactions with her which were recorded.  The interviewing officer was Ms Anna Shorten and the interaction with her occurred on March 14th 2020.  This was the last interaction any member of the Department’s staff had with the complainant because, each time they tried to contact her after this date, she was unavailable, on holidays or out of the country.  All the correspondence sent to the complainant after May 5th 2020 was also sent to her advisors in FIOS Consultants, who wrote to the Department on that date, alleging discriminatory treatment.  If the complainant had been advised to submit a complaint to the WRC on that date, she would have been within the statutory time limit, meaning that she would have been within two months of the impugned interaction with Ms Shorten on March 14th 2020.

In his submission on the issue of the time limit, Mr Mac Siúrdáin stated that the dates of discrimination are a matter of evidence, “…however, each act by the Department in the way they engaged with the Complainant amounts to acts of discrimination and were ongoing until the completion of the processing of her Application.”

Ms Cassidy submitted that this is a fundamental misunderstanding of the law of evidence and of equality law.  The section of the Act on the burden of proof, section 38A, demands that, at the very least, a complainant must raise a “prima facie” case of discrimination.  This is done by outlining in advance when the alleged acts of discrimination took place, who perpetrated them and what precisely occurred.  The complainant accepts that “acts” had to have occurred and she relies on ongoing “acts” to ground her complaint.  Therefore, she is required to state what the “acts” were, who perpetrated them and when.  On the facts provided, Ms Cassidy asserted that the complainant has failed to set out a prima facie case.

In her submission, the complainant states that she didn’t keep a diary of events, and she goes on then to say that the dates of discrimination are a matter of evidence.  Ms Cassidy submitted that these two statements are entirely contradictory.  How can the complainant demonstrate the evidence of discrimination if she doesn’t know when the alleged discrimination occurred?

Ms Cassidy submitted that the complainant and her advisors know well that the last interaction between her and the Department’s staff was March 14th 2020 and no “acts” can be identified as having taken place after that date because no interactions took place.  From the perspective of the law and the requirement for evidence, it is untenable for the complainant to say that she can’t remember what the “acts” were.  Ms Cassidy asserted that if, from May 5th 2020, the complainant genuinely had no idea what documents she had to furnish because she had language difficulties, which the Department denies, then her advisors could have assisted her and brought the complaint of discrimination separately and simultaneously.

The complainant’s submission states that, “…it is our case that until she was awarded and paid her payment (29 September 2020) the discrimination was ongoing.”  Ms Cassidy argued that, as a matter of law, this statement nullifies the complainant’s case.  She said that there is no legal nexus whatsoever between the payment date and any alleged discriminatory acts.  The complainant must, in the first instance, raise a “prima facie” case of discrimination and simply stating, “it is our case…” without evidence cannot meet that bar.

Mr Mac Siúrdáin submitted that the payment of the job-seeker’s allowance in arrears “has still not restored her to the position she should have been in if the process had been completed within a reasonable time.”  Ms Cassidy said that this statement clarifies the true issue of the complainant’s case, which is the length of time that the process took and not discrimination.  The process took time because the complainant refused to provide the documents requested to process her application.  When she eventually submitted her accounts for 2018, her claim was processed within two weeks, which, Ms Cassidy submitted, is a reasonable time frame.

As a comparator, the complainant relies on a random group of English speakers, who, Mr Mac Siúrdáin claims, “…would not encounter the difficulties the Claimant encountered in her dealings with the Department of Social Protection because they could understand what was being said to them and she could not.”  As a matter of law, Ms Cassidy said that the complainant is not entitled to rely on a random group and she cannot assert, with absolute certainty, that beneficiaries of social welfare services who are English speakers, would have different experiences to her.  The complainant cannot prove this statement to be correct unless she has interviewed every single English-speaking beneficiary of social welfare payments.  Secondly, a simple difference in treatment is not the legal test to establish discrimination compared to another person, and Ms Cassidy argued that the statement is moot and does not answer the question of who her comparator is.

The requirement for an appropriate comparator is set out at section 3(2) of the Act and Ms Cassidy submitted that this is a vital aspect of discrimination law.  The complainant must show that she was treated less favourably than someone else was or would have been in a comparable situation.    

Mr Mac Siúrdáin argued that it is the failure of the Department to use the translation services requested by the complainant, which has resulted in breaches of the Equal Status Act and Article 21 of the EU Charter of Fundamental Rights.  Ms Cassidy replied that the Department did not fail to use the translation services.  The complainant was a recipient of social welfare benefits for eight years before March 14th 2020 when she referred to a requirement for translation services.  During her 14-year long relationship with the Department, she never requested translation services when dealing with her benefit entitlements or when she availed of and successfully completed FÁS courses provided by the Department.  The complainant’s long and successful history with the Department has been conducted entirely through English.

Failure to Comply with the Notification Time Limit

A person contemplating a complaint of discrimination must comply with two separate time limits under the Equal Status Acts.  The first, at section 21(2), provides that a complainant must, within two months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress.  Section 21(3)(a) provides that, for reasonable cause, the WRC may extend the two-month time limit to four months.  The complainant sent her notification to the Department on October 19th 2020, around 18 months after she said that she had two meetings in the Intreo office in Galway (March and April 2019) at which she claims that she asked for translation services which were not provided.  On her ES1 notification, she said that the discrimination was ongoing until September 9th 2020, when she was granted job-seeker’s allowance.  She has not sought an extension of the time limit.

The second time limit is set out at section 21(6) of the Act and this provides that a complaint of discrimination may not be considered by an adjudication officer if it is referred to the WRC more than six months after the most recent incident of discrimination.  For reasonable cause, this time limit may be extended to 12 months.  On December 14th 2020, Mr Mac Siúrdáin sent the complainant’s claim form to the WRC, again arguing that discrimination was ongoing until September 8th 2020.  Mr Mac Siúrdáin did not seek an extension of this time limit.

As she alleges that discrimination was continuous from March 2019 until September 2020, it falls to me to not only consider the issue of the time limit for submitting a complaint, but to determine when the alleged discrimination may have occurred and if it was ongoing until September 2020.

Consideration of the Evidence

In her evidence, the complainant said that, at the beginning of April 2019, with her application for job-seeker’s allowance having been refused, she attended a meeting in the Intreo office in Galway, at which she told Ms Nora Coyne that she didn’t know the English language.  I find the complainant’s evidence in this regard not credible, because she had been engaging with the Intreo office for many years and she never asked for help with translation.

On April 28th 2019, the complainant sent a detailed email to the Intreo office expressing her frustration and upset at not being granted job-seeker’s allowance.  In the fourth paragraph of her email she wrote:

“Inspector Patricia asked as about my husband statement from accountant but we don’t have money to pay for accountant.  It is why inspector Nora told that my husband can make statement by himself.  My husband made it as good as he was able to do.  But despite this, we waiting for answer.  I feel that I am treated without respect in Social Welfare.”

At no stage during these early engagements with the Department did the complainant say that she had difficulties speaking or understanding English and, although she said that she attended the Intreo office twice a week since January 2019 enquiring about her application, she did not complain that she was not being understood or that she did not understand what she was being asked to provide.

From the email of April 28th 2019, it is apparent to me that the complainant has no difficulty understanding English and that her lack of proficiency compared to a native English speaker was not the reason that there was a delay processing her application for job-seeker’s allowance.  It is apparent also that the complainant understood that the Social Welfare inspector, Ms Nora Coyne, was prepared to accept a document other than a statement prepared by an accountant, but that the document provided by the complainant’s husband was not adequate to verify their income in 2018.  On April 30th, Ms Coyne wrote to the complainant clearly setting out the documents that were required.  These were,

1.       A complete set of accounts of income and expenses with invoices and receipts for their self-employed business for 2018;

2.       Details of income and expenses accompanied by invoices and receipts related to Mr Boral’s photography business for 2018.

In response, the complainant sent an email to Ms Coyne:

“Dear Nora

Thank you for your letter.  I will try my best to prepare the next documents.

I received letter from you 30th of April.  It’s one day before my holidays.  Unfortunately, I do not have all the necessary things with me to be able to prepare documents for you.  I will provide all necessary documents as soon as possible after my return from courses in Poland, that is after 14th of May.

It’s a pity that I got a letter from you the day before my trip because I really care about the Jobseeker Allowance decision.

I hope it will not be a problem for you.

Regards

Ewelina Boral.”

In this email, which is recorded above in full, the complainant did not say that she didn’t understand what was needed, she didn’t ask for an explanation of the documents that Ms Coyne requested and she didn’t say that she needed help with translation.

Regrettably, five months later, in October 2019, when she attended an appeal meeting arising from the refusal to grant her the job-seeker’s allowance, the complainant had still not provided the documents that were requested.  A note of the meeting shows that the appeals officer read out the reason that the allowance had not been granted and she read out the relevant legislation.  The notes show that the complainant indicated that she understood.  The appeals officer explained why the Department had not considered €5,556.60 of expenses related to the couple’s self-employed business because there were no receipts available.  The complainant committed to getting her accountant to provide the information “in the next few days.”

Was the Complainant Discriminated Against and When?

The complainant’s case is that she was discriminated against on an ongoing basis between April 2019 until September 9th 2020.  I find that there is no substance to this claim because the complainant produced no evidence that shows that she had a difficulty understanding what the Department was seeking in the form of documents to back up her claim for job-seeker’s allowance.

On March 14th 2020, the complainant wrote to the Manager of the Intreo Centre in Galway, and, for the first time, she stated that she felt that she was being discriminated against.  She claimed that a named official in the Department with whom she had dealings failed to use the translation service that was available.  It is my view that this allegation, 14 months after she made her initial application for job-seeker’s allowance, was made out of frustration and annoyance that her claim had not been granted and not out of any sense that a lack of proficiency in English was impeding her claim. 

While considering the time limit issue, I have considered the complainant’s evidence in full to attempt to ascertain when the alleged discrimination on the ground of nationality occurred.  It is my view that the evidence given by the complainant is not sufficient to lead to a presumption that, on the basic facts, she was discriminated against at any time.  It is my view that her application for job-seeker’s allowance was granted when she provided the necessary evidence to support her claim and that it could not have been granted any sooner.  Contrary to her allegation of discrimination, I find that she was treated reasonably and fairly. 

Conclusion

If, on March 14th 2020, the complainant felt that she was being discriminated against, it was open to her, within the following two months, or, before the expiry of four months, to submit an ES1 form to the Department.  She has submitted no reasonable cause for failing to do so and I find that, as she submitted her ES1 form to the Department on October 20th 2020, her complaint is outside the time limit prescribed at section 21(2) of the Act.

The complainant did not ask for an extension of the time limit to submit her allegation of discrimination; her case is that discrimination was ongoing from the time her application for job-seeker’s allowance was refused in March 2019, until her claim was granted in September 2020.  For this reason, I have had to consider if discrimination occurred and, if it was, as argued by Mr Mac Siúrdáin, ongoing.  I have found no evidence that discrimination occurred in March 2019 and no evidence that discrimination was the reason that the complainant’s application for job-seeker’s allowance took 20 months to process.  For this reason, the responsibility for proving that discrimination did not occur does not now shift to the Department.

Considering the extent of the resources of the Department of Social Protection and the WRC which have been expended on this complaint, I would earnestly request that the complainant and her advisors to look upon this Decision as the end of the matter.

I have concluded that the complainant has not established that there was a reasonable cause for her failure to submit an ES1 form to the Department of Social Protection within the two-month time limit specified at section 21(2)(a) of the Equal Status Acts 2000 - 2018.  I find also that she has failed, on the basic facts, to make out a case that she was discriminated against.  I decide therefore, that her complaint is not well founded.

Discrimination, complaint submitted outside the time limit