CORRECTION ORDER
ISSUED PURSUANT TO SECTION 29 OF THE Equal Status Act 2000
This Order corrects the original Decision ADJ-00040301 issued on 09/11/2023 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040301
Parties:
| Complainant | Respondent |
Parties | Medical Student | Third Level College |
Representatives | self | David McCarroll Ronan Daly Jermyn |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00051570-001 | 06/07/2022 |
Date of Adjudication Hearing: 24/10/2023 and on the 5th of July 2023 held remotely.
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The Complainant is a lay litigant and allowing for the fact that a comprehensive written submission was made by the Respondent applying for the matter to be dismissed arguing it was out of time and statute barred, the hearing was adjourned so that the Complainant could fully consider the preliminary application and also make a written submission. At the resumed hearing both parties relied principally on their respective written submissions. I have exercised my discretion to anonymise the parties based on sensitive medical information disclosed by the Complainant.
Background:
The Complainant was a medical student at the College. She alleges that the college discriminated against her on the grounds of Race and that her marks were not a fair reflection of her ability and that the assessors were racially prejudiced. Other complaints are also brought relating to alleged harassment, victimisation and exclusion form clubs and societies. This decision relates to a preliminary application made by the Respondent that the matters before this tribunal are statute barred and therefore do not concern the substance of the allegations made against the Respondent. |
Preliminary Matter:
Statute Barred:
The Respondent stated that the matters before the tribunal are statute barred and time barred. The Equal Status Act 2000 as amended requires that the service provider be notified within 2 months of the alleged prohibited conduct. This may be extended to 4 months and exceptionally waived. Also, the Commission is statute barred from investigating complaints that are lodged outside of the 6-month window beginning when the prohibited conduct is alleged to have occurred, this maybe extended to 12 months.
The Workplace Relations Complaint form details four complaints:
- Physical Assault, Harassment and Victimisation.
- Discriminatory Practices in Academic Evaluation of Clinical Practices.
- Discriminatory Practices in the Provision of Reasonable Accommodation.
- Discriminatory Practices from access to Clubs and Societies
However, prior to submitting this form to the Commission the Complainant is required to notify the Respondent pursuant to section 21 (2) of the Equal Status Act 2000 as amended. This notification is made in a form that is referred to as an ES 1 form and it refers to complaints 1 and 2 but not to complaints 3 and 4. On the facts, these later complaints appear not to be properly notified to the Respondent. It is contended that complaints 1 and 2 were not made within the prescribed 2-month statutory timeframe and so are statute barred as are complaints 3 and 4 as they were not properly notified ever to the Respondent prior to being lodged with the Workplace Relations Commission.
Timeline:
The Workplace Relations Commission (WRC) complaint form was lodged with the Commission on the 6th of July 2022.
The (WRC) form stated that the College was notified of the complaint(s) on 12th of June 2022, with the ES 1 Form. (Prior to lodging an equal status complaint with the Commission, the Respondent must be notified, and this is referred to as an ES 1 form.)
The first date of discrimination is stated to be 27th of September 2021 (alleged assault).
The most recent date of discrimination is stated to be 27th of June 2022 (failure to provide reasonable accommodation).
Allegations:
The Complainant alleges continuing and ongoing discrimination.
A medical statement was sent to the College stating that the Complainant had been diagnosed with Post Traumatic Stress Disorder has been submitted. That medical statement is dated 26th of June 2022.
On the papers and evidence provided at the hearing the factual matrix of this case relates to the student’s exam performance.
It is stated that the student excelled at other colleges including third level colleges and that her grade at the Irish College was linked to racism.
It is alleged that a meeting held about her grievance with college faculty resulted in her being assaulted.
The following are incidents of alleged discrimination and sent to the Head of the College on or about 29th of June 2022 and this was written on behalf of the Complainant by her mother:
- Discrimination and ostracism from student union during October 2020 to March 2021
- In June 2021 failure by college faculty to show multichoice scripts.
- On or about 27th September 2021 alleged assault by a faculty member.
- Failure to provide CCTV recording of incident relating to the assault.
- February 2022 alleging evidence of grade manipulation
The Complainant’s mother in turn stated that internal processes proved to be of no avail and that the college advised the following and denied the allegations as set out:
- In May 2022 the Complainant was informed by the college to file a complaint.
- In May 2022 all allegations are denied by the college.
- In June 2022 despite being diagnosed with Post Traumatic Stress Disorder and a physical illness no reasonable accommodation was provided during an examination.
ES 1 Complaint Form:
The ES 1 Form alleges unlawful treatment by:
- Discriminating
- Harassing
- Victimising
the complainant.
And the ground relied upon is Race discrimination. This ES 1 form is dated 12th of June 2022.
This ES 1 Form stated that the discrimination occurred as follows:
“4. I think that this involved me being treated less favourably than others (on the ground(s) mentioned above) in the following way: (this section is not needed for harassment or sexual harassment cases) I was treated less favorably than others because of my race, national origin and skin colour. In a class of 84 students , I am the sole black female student and female of Nigerian / African origin and African-American resident. February 9 2022, 11:22am and June 9 2022 I was assessed in a discriminatory manner, that ultimately hurt and diminished my otherwise clear accomplishments. This discriminatory action against was also performed to victimize me, in retaliation and to paint an orchestrated image of me lacking the good sense to achieve, and to support the previous assessment by their fellow faculty ( deletedK), and protect her image. Manipulating my grades to artificially reduce them and falsely ranks me lower in the class, and reduces my future ability to access work opportunities to take care of myself financially and”
The Respondent contends that the ES1 form which is dated the 12th of June 2022 at the earliest could only be received on the 13th of June as the 12th fell on a Sunday.
The ES 1 form did not refer to reasonable accommodation or discriminatory practices from access to clubs and societies. As no notice had been given of these complaints to the Respondent at any time they cannot be considered now by the Commission.
The Respondent stated that the complaint relating to harassment is also out of time as the assault that is denied is alleged to have occurred on the 27th of September 2021. The Commission is limited to investigating complaints that were properly notified to the Respondent pursuant to section 21(2) of the Act within a 2-month period. Only if that requirement is met can the Complainant seek redress at the WRC. The Commission is limited to hear cases lodged within 6 months of the alleged prohibited conduct. An extension of time can be sought up to `12 months based on reasonable cause. No case has been made to extend time. The complaint form lodged with the Commission is dated the 6th of July 2023.
The complaint about being discriminated against by the Student Union and access to Clubs and Societies is out of time, as the allegation of omission relate to referenda held in March 22, and not properly notified to the Respondent pursuant to section 21(2) of the Act and not detailed at all in the ES 1 form which is dated 12th of June 2022 and was received on the 13th of June 2022.
Statutory Provisions and Time Limits:
Redress in respect of prohibited conduct.
21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission
(2) 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,
The facts regarding the alleged incidents are as follows:
- The Alleged assault occurred in September 2021 and appears to be out of time by reason of failing to notify the Respondent in time that ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,
- The alleged Discriminatory Practices relating to examination marking and assessment occurred during 2021 and 2022. The last date of alleged discrimination relates to an email communication referenced by the Complainant to a faculty member dated 25th March 2022. However, the Complainant details a period of assessment in the ES 1 form as running from:
“I am the sole black female student and female of Nigerian / African origin and African-American resident. February 9, 2022, 11:22am and June 9 2022 I was assessed in a discriminatory manner”
The College stated that the alleged discriminatory practices related to the following:
- Results of 29th of June 2021 on the facts this appears to be out of time pursuant to section 21.
- Grievance alleging unfair practice 20th November 2021 on the fact this appears to be out of time pursuant to section 21.
- Results of 27th of January 2022 appears to be out of time pursuant to section 21.
- Grievance dated 25th of March 2022 alleging unfair practice on the facts appears to be out of time pursuant to section 21.
However, the Complainant in her ES 1 form references a date of discrimination occurring on the 9th of June 2022:
On multiple occasions, I had written to the head of school, deleted, advising of the psychological trauma, I was enduring, yet she sought to further inflict psychological harm by repeatedly insisting I must meet with her in person after I had given valid reasons for not doing so in order for my continued well-being. She has not for one day offered support services for my continued well-being On June 9 2022 she furthered her professionally negligent and insensitive acts and cited we were seeking to defame her faculty because I recounted a situation in which her faculty made the school premises/ workplace unsafe for me when they took unlawful actions against me. These actions were by her module coordinator redacted and Director of her medical program, redacted, and included discrimination and retaliatory victimization, harassment, physical assault and verbal assault. I let both Irina and Helen know that I felt uncomfortable delivering a presentation in person for a module headed by Irina, after I had been physically assaulted and harassed, in her direct presence by Dr redacted, whom she had invited into the room, without my adequate prior consent
On the facts this description does not relate to an academic assessment.
The Complaint referred to the Commission number 2: DISCRIMINATORY PRACTICES IN ACADEMIC EVALUATION OF CLINCIAL PRACTICALS states:
“On September 27 2022, Dr redacted engaged in discriminatory practices by failing…[this must be an error as form lodged with Commission on 6th of July 2022] …Seeing that clinical exams were very subjectively marked, I wrote to Dr. redacted on November 2021…Unfortunately the discriminatory practices in performance assessment continued to persist and occurred on the 9th of February 2022…In an attempt to give the benefit of the doubt, my family and I wrote to Redacted for my grades and marks to be rectified in the wake of overt discriminatory grading practices against me on March 25th 2022.”
It is this timeframe that is referred to the tribunal for adjudication. It also the reference period for the Respondent to address.
- The 3rd complaint referred to the Commission is Reasonable Accommodation relating to an exam assessment completed on or about 17th of June 2022, and appears to be in time; however, it was not ticked as a complaint on the ES 1 form and not notified to the College within the required 2-month time period. This would appear to fall foul of section 21 to notify the respondent prior to seeking redress with the Commission.
- I think that you have/may have treated me unlawfully by:
(please tick which box or boxes apply)
Discriminating against me,
Harassing me, or allowing me to be harassed
Sexually harassing me, or allowing me to be sexually harassed
Failing to provide me with “reasonable accommodation” [see Notes:
only for person with a disability]
Victimising me
The Complainant did not tick the 4th box ‘failing to provide me with “reasonable accommodation”.
- On the facts the 4th complaint is out of time and is about allegations made against the Student Union about access to Clubs and Societies. They are time barred pursuant to section 21 of the Equal Status Act 2000 as amended (the Act) as they were not notified to the Respondent at all in an ES 1 form and are time barred as the last events complained of relate to March 2022 when referenda were taking place and occurred more than 2 months before the ES 1 form was sent to the College. The ES 1 form is dated the 12th of June 2022.
Extending Time:
I note that section 21 also provides for the following:
(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 which the prohibited conduct occurred, and
(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.
The Complainant was requested to make a written submission so that she could fully consider the application being made to dismiss her case as it was out of time. The first day of hearing was adjourned so that she could prepare and respond in detail to the application being made by the Respondent to dismiss her claim. The Respondent had made a detailed submission detailing why the application was being made to dismiss the complaints based on time limits not being met or grievances not being notified to the Respondent pursuant to section 21 of the Equal Status Act 2000 as amended (the Act).
The Complainant filed her written submission on the 25th of July 2023.
That submission was read into the record at the second day of hearing.
In her written submission the Complainant stated:
Moreover, the WRC will appreciate that the counsel has already accepted that the case is prima facie and within the jurisdiction of the WRC and timely filed because in the counsel’s initial response on July 2022 , and again in June 2023, they addressed each complaint specifically and made no mention of a lack of jurisdiction based on time or prima facie, with the exception of one case – the student union case
Ms considers the defendants use of dates of correspondences to extrapolate lack of jurisdiction as yet another distracting attempt to get Ms cases dismissed on ill guided and fabricated technicalities, rather than defending the case head on. In Ms case, all the cases fall within this statutory 6 months’ timeline, with the exception of the assault by faculty, which occurred 9 months prior to the filing. For example, the student union failed to include a referendum that would prevent exclusion of black students on March 22nd 2022, but held other referenda for matters of higher import to them. Similarly, the grade manipulations by faculty occurred in February 2022, and the racially motivated lack of adherence to school policy and Irish law with regards to mental health parity and accommodations occurred in June 2022. Furthermore, the WRC also permits that these timelines to report matters are guidelines, and that it is the adjudicator who may decide whether to grant extra time for complaints and may extend the time for filing to the WRC by up to 12 months, and sometimes in excess of 12 months, based on the circumstances. In this capacity the WRC adjudicator will be fair to appreciate that Ms was a medical student at the time of these onslaught of race-based attacks against her, and that she still was obliged to participate in pre-fixed exam dates and meet other assignment deadlines, barring illness, as per school policy. Thus, Ms was not at full liberty to plan her own schedule, take time off to establish a complaint, and still be compliant with her medical studies. Thus, she sought to put her head down and focus on why she was enrolled in medical school, and ignore their ignorance and eventually willful, vindictive acts of race based prejudice towards her. The WRC adjudicator, would also further appreciate and provide reasonable accommodations for any time lapses, should he find that such may exist, because Ms was still new to Ireland, having just arrived 2 years prior, with 1 year in lock down owing to Covid. Thus, it is neither a reasonable nor fair presumption to expect a foreigner to be equipped with the same level of knowledge as an Irish native with regards to Irish statutes and laws, human rights protections, the WRC and complaints procedure. When she first laid her complaint of assault and flagged acts of discrimination to the school, none of this knowledge was volunteered to her. The defendant’s response was to further conspire to victimize her, by further manipulating her grades in a bid to cover up their reputation and undermine the credibility of Ms claims. Furthermore, the WRC adjudicator will appreciate that Ms ardently sought to exhaust all internal remedies before filing a complaint with the WRC. In this capacity, Ms asserts and counters the defendant’s response that she did not follow internal complaints procedures. Rather it is partly because she followed such procedures, seeking relief from multiple people and bodies within Redacted, that her complaints were not filed immediately, though were yet still timely. All evidence files within Ms possession were ready to be presented on July 5th 2023 at the time of the hearing. In the appendix of this submission are some of the letters sent to the head of school, where Ms attempted to resolve matters internally and educate faculty on unconscious bias and prevent further victimization and acts of racial prejudice against her. The defendant would respond that Ms claims were vague and irrational. Redacted denial of wrongdoing, oft delayed and protracted response also affects the ability to fully comply with time constraints in legal proceedings. For example, the defendant is still holding onto evidence files requested 6 months ago by the complainant.
The Complainant has been provided with time to detail and present her case at a reconvened hearing relating to the application to dismiss for failure to notify the Respondent pursuant to section 21(2) in the first instance on time and to detail her complaints to the Respondent prior to seeking redress to this tribunal:
(2) 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,
Based on what has been referred to the Commission on the 6h of July 2022 the last referenced date on the form in complaint 1 appears to be May 2022 however this is not the date of the alleged assault and prohibited conduct, which is stated to have occurred in September 2021. And in complaint 2, the 25th of March 2022 is referenced as a date when alleged prohibited conduct occurred (alleged discriminatory marking). However, May 2022 in complaint 1 is not referred to as an incident of prohibited conduct rather it is a record that the alleged perpetrator denied that the assault ever occurred. The alleged prohibited conduct complained of (assault) is stated to have occurred in September 2021. A denial of an allegation cannot be classed as an act of prohibited conduct. Complaints 3 and 4 referred to the Commission are not detailed on the ES 1 form. The ES 1 form is dated the 12th of June 2022 which is a Sunday and received on the 13th of June 2022 at the earliest, the last alleged incident of prohibited conduct referred to the Commission is the 25th of March 2022 and that related to alleged discriminatory grading practices. This incident occurred more than 2 months prior to lodging her complaint and had not been notified to the Respondent in the first instance as set out at section 21 (2) of the Act. The alleged assault referred to the Commission occurred in September 2021 and is significantly out of time based on section 21(2) and section 21(6) of the Act:
(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 period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or 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.
In her written submission the Complainant has argued that in fact her complaints are within time. No case has been made out to explain why a delay occurred based on the date of prohibited conduct having occurred more than 2 months prior to serving an ES 1 notification or why the Respondent was not notified at all of 2 grievances pursuant to section 21(2) of the Equal Status Act 2000 as amended.
Reasonable Cause:
The Respondent relies upon Skanska and the Labour Court’s decision is consistent with Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:
In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" as follows:
"The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."
The Respondent has made out a detailed case why this tribunal does not have jurisdiction to hear the complaints before it pursuant to section 21.
The first hurdle relates to the failure to provide 2 months’ notice to the Respondent relating to the alleged incidents of prohibited conduct pursuant to section 21 of the Equal Status Act 2000 as amended, for any of the complaints referred to the Commission and why the Complainant has failed to notify the Respondent of 2 of these complaints as set out in the Act but not notified to the Respondent as required by the Act.
The Complainant has not made out a case of reasonable cause to explain the delay to notify the Respondent on time pursuant to section 21 (2).
Ongoing and Continuing Discrimination:
It is possible to make out a case of ongoing discrimination that arguably brings all the incidents into a line of connected wrongs. Section 21(11) states:
(11) For the purposes of this section prohibited conduct occurs-
(a) if the act constituting it extends over a period, at the end of period
(b) if it arises by virtue of a provision which operates over a period, throughout the period.
The alleged incidents of prohibited conduct are not one act or could be argued to be similar and on the fact of the description of each wrong constitute 4 separate complaints. While all the acts are described as discriminatory that does not meet the requirement that the matters complained of are one act. Even allowing for the possibility of ongoing discrimination, the last incident of alleged prohibited conduct referred to the Commission and that also meets the requirement to notify the Respondent prior to referring the allegations to the Commission, is the 25th of March 2022, and the ES 1 form is dated the 12th of June 2022, which means the complaint is out of time pursuant to section 21(2). The complaint relating to assault is stated to have occurred in September 2021 While later dates are detailed in the complaint form made to the Commission, dates referenced in complaints 3 and 4 were never notified to the College pursuant to section 21(2) within or outside the statutory timeframe of 2 months and based on reasonable cause within 4 months.
Allowing for the fact that relevant case law relating to equality matters have been made by employment tribunals, relevant authorities determined by the Labour Court are cited in Equal Status cases. The Labour Court in Hurley v County Cork VEC (EDA1124) said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. The case of the Department of Justice Equality and Law Reform v A Worker(EDA1422), which involved a complaint of alleged discrimination by a prospective employer and the Labour Court determined that the complainant had failed to prove a continuum of discrimination between historic alleged instances of discrimination outside of the six month referral period, and the alleged acts that the Court considered "in time" stating that the complainant failed to "establish a sufficient connection between the competitions such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions".
Set Aside:
The obligation to notify the respondent can be set aside pursuant to section 21 (3) where the tribunal is satisfied that:
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.
In law exceptionally is a very high threshold to reach. I am not satisfied in the particular circumstances of this case that subsection 2 should be set aside as the exceptional reasons being proffered is that a physical assault took place; that caused post-traumatic stress disorder. These are assertions and do not explain the delay or failure to notify, which is the purpose of setting aside subsection 2 if exceptional reasons exist. The medical statement or certificate is dated 26th of June 2022. The allegation of assault is categorically denied. It also the case that both the Complainant and her parents continued to make representations to the College after the alleged date of assault in September 2021. It is therefore not compelling evidence that trauma prevented the presentation of a complaint as required by law when the Complainant was in fact actively arguing her case after this date as detailed in extensive correspondence.
The Complainant stated she is not an Irish citizen and that she is unaware of the requirements of Irish Law. However, ignorance of the law is not a reason to set aside statutory obligations. This is particularly the case where an individual through reasonable inquiries could access that information. The Complainant is an educated applicant with third level qualifications. In these circumstances it is difficult to see how this argument can be sustained and subsection 2 be set aside concerning the obligation to meet statutory timelines. As no exceptional case has been out that this tribunal determines would be fair and reasonable, I have determined that no exceptional case has been made out to set aside section 21(2). I therefore must determine that the matters before me are time barred and that the Respondent has not engaged in prohibited conduct and dismiss the complaints for not being on time and not being properly notified to the Respondent.
I have determined that the Complainant has failed to meet the requirements pursuant to section 21 to either notify the Respondent relating to complaints 1 and 2 within 2 months of the prohibited conduct occurring or not notifying them at all of her grievances concerning complaints 3 and 4 and her intent to progress under the Act if not satisfied with the Respondent’s response. The Complainant has not provided a reasonable cause to explain the delay or set out exceptional reasons why in this case it would be fair to set aside the requirement pursuant to section 21 (2) of the Act. No exceptional case has been made out where I could determine that it would be fair and reasonable to set aside subsection 2 of the Act. I have determined that no exceptional case has been made out to set aside section 21(2). I therefore must determine that the matters before me are time barred and that the Respondent has not engaged in prohibited conduct and dismiss the complaints.
Summary of Complainant’s Case:
See preliminary matter |
Summary of Respondent’s Case:
See preliminary matter |
Findings and Conclusions:
I have determined that the Complainant has failed to meet the requirements pursuant to section 21 to either notify the Respondent within 2 months of the prohibited conduct occurring or not notifying them at all of her grievances and her intent to progress her complaints under the Act if not satisfied with the Respondent’s response. I find in favour of the Respondent that none of the matters complained of were made within 2 months of the incidents occurring pursuant to section 21. I find that the Complainant failed to notify the Respondent in the ES 1 form of her complaint relating to Reasonable Accommodation. I find that the Complainant failed to notify the Respondent in the ES 1 for of her complaint concerning the Students Union and access to Clubs and Societies. The Complainant has not provided a reasonable cause to explain the delay for all 4 complaints as detailed in her Workplace Relations Commission complaint form. The Complainant has not set out exceptional reasons why in this case it would be fair to set aside the requirement pursuant to section 21 (2) of the Act, other than to state that her allegations are true. I therefore must determine that the matters before me are time barred and that the Respondent has not engaged in prohibited conduct and dismiss the complaints. |
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.
The statutory provisions require that the Complainant must notify the Respondent of what she considers to be alleged prohibited conduct within 2 months of the alleged prohibited conduct occurring. I have determined that the Complainant has failed to meet the requirements pursuant to section 21 of the Act to either notify the Respondent within 2 months of the alleged prohibited conduct occurring or from the last incident occurring if relevant, or not notifying them at all of 2 grievances. And not informing the Respondent of her intent to progress her complaints under the Act if not satisfied with the Respondent’s response. The complaints relating to reasonable accommodation and also the Students Union and access to Clubs and Societies are not properly before me as they were not notified to the Respondent pursuant to section 21 of the Act and therefore, I dismiss these complaints. The Complainant has not provided a reasonable cause to explain the delay to notify the Respondent on time or set out exceptional reasons why in this case it would be fair to set aside the requirement pursuant to section 21 (2) of the Act relating to her complaints presented to the Commission. I dismiss all the Complainants complaints as they are out of time or not notified at all to the Respondent pursuant to section 21(2) of the Act: 1. Physical Assault, Harassment and Victimisation (not notified to the Respondent within 2 months). 2. Discriminatory Practices in Academic Evaluation of Clinical Practices (not notified to the Respondent within 2 months). 3. Discriminatory Practices in the Provision of Reasonable Accommodation for Mental Health Illness and Disability (not notified to the Respondent at all pursuant to section 21). 4. Discriminatory Practices from Access to Clubs and Societies (not notified to the Respondent at all pursuant to section 21). I determine that the Respondent has not engaged in prohibited conduct and dismiss all complaints made against them arising from the failure of the Complainant to notify the Respondent as required by the Act on time. |
Dated: 09/11/2023
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Notification-Time Limits |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00040301
Parties:
| Complainant | Respondent |
Parties | Medical Student | Third Level College |
Representatives | self | David McCarroll Ronan Daly Jermyn |
Complaint(s):
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00051570-001 | 06/07/2022 |
Date of Adjudication Hearing: 24/10/2023 and on the 5th of July 2023 held remotely.
Workplace Relations Commission Adjudication Officer: Brian Dalton
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The Complainant is a lay litigant and allowing for the fact that a comprehensive written submission was made by the Respondent applying for the matter to be dismissed arguing it was out of time and statute barred, the hearing was adjourned so that the Complainant could fully consider the preliminary application and also make a written submission. At the resumed hearing both parties relied principally on their respective written submissions. I have exercised my discretion to anonymise the parties based on sensitive medical information disclosed by the Complainant.
Background:
The Complainant was a medical student at the College. She alleges that the college discriminated against her on the grounds of Race and that her marks were not a fair reflection of her ability and that the assessors were racially prejudiced. Other complaints are also brought relating to alleged harassment, victimisation and exclusion form clubs and societies. This decision relates to a preliminary application made by the Respondent that the matters before this tribunal are statute barred and therefore do not concern the substance of the allegations made against the Respondent. |
Preliminary Matter:
Statute Barred:
The Respondent stated that the matters before the tribunal are statute barred and time barred. The Equal Status Act 2000 as amended requires that the service provider be notified within 2 months of the alleged prohibited conduct. This may be extended to 4 months and exceptionally waived. Also, the Commission is statute barred from investigating complaints that are lodged outside of the 6-month window beginning when the prohibited conduct is alleged to have occurred, this maybe extended to 12 months.
The Workplace Relations Complaint form details four complaints:
- Physical Assault, Harassment and Victimisation.
- Discriminatory Practices in Academic Evaluation of Clinical Practices.
- Discriminatory Practices in the Provision of Reasonable Accommodation.
- Discriminatory Practices from access to Clubs and Societies
However, prior to submitting this form to the Commission the Complainant is required to notify the Respondent pursuant to section 21 (2) of the Equal Status Act 2000 as amended. This notification is made in a form that is referred to as an ES 1 form and it refers to complaints 1 and 2 but not to complaints 3 and 4. On the facts, these later complaints appear not to be properly notified to the Respondent. It is contended that complaints 1 and 2 were not made within the prescribed 2-month statutory timeframe and so are statute barred as are complaints 3 and 4 as they were not properly notified ever to the Respondent prior to being lodged with the Workplace Relations Commission.
Timeline:
The Workplace Relations Commission (WRC) complaint form was lodged with the Commission on the 6th of July 2022.
The (WRC) form stated that the College was notified of the complaint(s) on 12th of June 2022, with the ES 1 Form. (Prior to lodging an equal status complaint with the Commission, the Respondent must be notified, and this is referred to as an ES 1 form.)
The first date of discrimination is stated to be 27th of September 2021 (alleged assault).
The most recent date of discrimination is stated to be 27th of June 2022 (failure to provide reasonable accommodation).
Allegations:
The Complainant alleges continuing and ongoing discrimination.
A medical statement was sent to the College stating that the Complainant had been diagnosed with Post Traumatic Stress Disorder has been submitted. That medical statement is dated 26th of June 2022.
On the papers and evidence provided at the hearing the factual matrix of this case relates to the student’s exam performance.
It is stated that the student excelled at other colleges including third level colleges and that her grade at the Irish College was linked to racism.
It is alleged that a meeting held about her grievance with college faculty resulted in her being assaulted.
The following are incidents of alleged discrimination and sent to the Head of the College on or about 29th of June 2022 and this was written on behalf of the Complainant by her mother:
- Discrimination and ostracism from student union during October 2020 to March 2021
- In June 2021 failure by college faculty to show multichoice scripts.
- On or about 27th September 2021 alleged assault by a faculty member.
- Failure to provide CCTV recording of incident relating to the assault.
- February 2022 alleging evidence of grade manipulation
The Complainant’s mother in turn stated that internal processes proved to be of no avail and that the college advised the following and denied the allegations as set out:
- In May 2022 the Complainant was informed by the college to file a complaint.
- In May 2022 all allegations are denied by the college.
- In June 2022 despite being diagnosed with Post Traumatic Stress Disorder and a physical illness no reasonable accommodation was provided during an examination.
ES 1 Complaint Form:
The ES 1 Form alleges unlawful treatment by:
- Discriminating
- Harassing
- Victimising
the complainant.
And the ground relied upon is Race discrimination. This ES 1 form is dated 12th of June 2022.
This ES 1 Form stated that the discrimination occurred as follows:
“4. I think that this involved me being treated less favourably than others (on the ground(s) mentioned above) in the following way: (this section is not needed for harassment or sexual harassment cases) I was treated less favorably than others because of my race, national origin and skin colour. In a class of 84 students , I am the sole black female student and female of Nigerian / African origin and African-American resident. February 9 2022, 11:22am and June 9 2022 I was assessed in a discriminatory manner, that ultimately hurt and diminished my otherwise clear accomplishments. This discriminatory action against was also performed to victimize me, in retaliation and to paint an orchestrated image of me lacking the good sense to achieve, and to support the previous assessment by their fellow faculty ( deletedK), and protect her image. Manipulating my grades to artificially reduce them and falsely ranks me lower in the class, and reduces my future ability to access work opportunities to take care of myself financially and”
The Respondent contends that the ES1 form which is dated the 12th of June 2022 at the earliest could only be received on the 13th of June as the 12th fell on a Sunday.
The ES 1 form did not refer to reasonable accommodation or discriminatory practices from access to clubs and societies. As no notice had been given of these complaints to the Respondent at any time they cannot be considered now by the Commission.
The Respondent stated that the complaint relating to harassment is also out of time as the assault that is denied is alleged to have occurred on the 27th of September 2021. The Commission is limited to investigating complaints that were properly notified to the Respondent pursuant to section 21(2) of the Act within a 2-month period. Only if that requirement is met can the Complainant seek redress at the WRC. The Commission is limited to hear cases lodged within 6 months of the alleged prohibited conduct. An extension of time can be sought up to `12 months based on reasonable cause. No case has been made to extend time. The complaint form lodged with the Commission is dated the 6th of July 2023.
The complaint about being discriminated against by the Student Union and access to Clubs and Societies is out of time, as the allegation of omission relate to referenda held in March 22, and not properly notified to the Respondent pursuant to section 21(2) of the Act and not detailed at all in the ES 1 form which is dated 12th of June 2022 and was received on the 13th of June 2022.
Statutory Provisions and Time Limits:
Redress in respect of prohibited conduct.
21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission
(2) 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,
The facts regarding the alleged incidents are as follows:
- The Alleged assault occurred in September 2021 and appears to be out of time by reason of failing to notify the Respondent in time that ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,
- The alleged Discriminatory Practices relating to examination marking and assessment occurred during 2021 and 2022. The last date of alleged discrimination relates to an email communication referenced by the Complainant to a faculty member dated 25th March 2022. However, the Complainant details a period of assessment in the ES 1 form as running from:
“I am the sole black female student and female of Nigerian / African origin and African-American resident. February 9, 2022, 11:22am and June 9 2022 I was assessed in a discriminatory manner”
The College stated that the alleged discriminatory practices related to the following:
- Results of 29th of June 2021 on the facts this appears to be out of time pursuant to section 21.
- Grievance alleging unfair practice 20th November 2021 on the fact this appears to be out of time pursuant to section 21.
- Results of 27th of January 2022 appears to be out of time pursuant to section 21.
- Grievance dated 25th of March 2022 alleging unfair practice on the facts appears to be out of time pursuant to section 21.
However, the Complainant in her ES 1 form references a date of discrimination occurring on the 9th of June 2022:
On multiple occasions, I had written to the head of school, deleted, advising of the psychological trauma, I was enduring, yet she sought to further inflict psychological harm by repeatedly insisting I must meet with her in person after I had given valid reasons for not doing so in order for my continued well-being. She has not for one day offered support services for my continued well-being On June 9 2022 she furthered her professionally negligent and insensitive acts and cited we were seeking to defame her faculty because I recounted a situation in which her faculty made the school premises/ workplace unsafe for me when they took unlawful actions against me. These actions were by her module coordinator redacted and Director of her medical program, redacted, and included discrimination and retaliatory victimization, harassment, physical assault and verbal assault. I let both Irina and Helen know that I felt uncomfortable delivering a presentation in person for a module headed by Irina, after I had been physically assaulted and harassed, in her direct presence by Dr redacted, whom she had invited into the room, without my adequate prior consent
On the facts this description does not relate to an academic assessment.
The Complaint referred to the Commission number 2: DISCRIMINATORY PRACTICES IN ACADEMIC EVALUATION OF CLINCIAL PRACTICALS states:
“On September 27 2022, Dr redacted engaged in discriminatory practices by failing…[this must be an error as form lodged with Commission on 6th of July 2022] …Seeing that clinical exams were very subjectively marked, I wrote to Dr. redacted on November 2021…Unfortunately the discriminatory practices in performance assessment continued to persist and occurred on the 9th of February 2022…In an attempt to give the benefit of the doubt, my family and I wrote to Redacted for my grades and marks to be rectified in the wake of overt discriminatory grading practices against me on March 25th 2022.”
It is this timeframe that is referred to the tribunal for adjudication. It also the reference period for the Respondent to address.
- The 3rd complaint referred to the Commission is Reasonable Accommodation relating to an exam assessment completed on or about 17th of June 2022, and appears to be in time; however, it was not ticked as a complaint on the ES 1 form and not notified to the College within the required 2-month time period. This would appear to fall foul of section 21 to notify the respondent prior to seeking redress with the Commission.
- I think that you have/may have treated me unlawfully by:
(please tick which box or boxes apply)
Discriminating against me,
Harassing me, or allowing me to be harassed
Sexually harassing me, or allowing me to be sexually harassed
Failing to provide me with “reasonable accommodation” [see Notes:
only for person with a disability]
Victimising me
The Complainant did not tick the 4th box ‘failing to provide me with “reasonable accommodation”.
- On the facts the 4th complaint is out of time and is about allegations made against the Student Union about access to Clubs and Societies. They are time barred pursuant to section 21 of the Equal Status Act 2000 as amended (the Act) as they were not notified to the Respondent at all in an ES 1 form and are time barred as the last events complained of relate to March 2022 when referenda were taking place and occurred more than 2 months before the ES 1 form was sent to the College. The ES 1 form is dated the 12th of June 2022.
Extending Time:
I note that section 21 also provides for the following:
(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 which the prohibited conduct occurred, and
(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.
The Complainant was requested to make a written submission so that she could fully consider the application being made to dismiss her case as it was out of time. The first day of hearing was adjourned so that she could prepare and respond in detail to the application being made by the Respondent to dismiss her claim. The Respondent had made a detailed submission detailing why the application was being made to dismiss the complaints based on time limits not being met or grievances not being notified to the Respondent pursuant to section 21 of the Equal Status Act 2000 as amended (the Act).
The Complainant filed her written submission on the 25th of July 2023.
That submission was read into the record at the second day of hearing.
In her written submission the Complainant stated:
Moreover, the WRC will appreciate that the counsel has already accepted that the case is prima facie and within the jurisdiction of the WRC and timely filed because in the counsel’s initial response on July 2022 , and again in June 2023, they addressed each complaint specifically and made no mention of a lack of jurisdiction based on time or prima facie, with the exception of one case – the student union case
Ms considers the defendants use of dates of correspondences to extrapolate lack of jurisdiction as yet another distracting attempt to get Ms cases dismissed on ill guided and fabricated technicalities, rather than defending the case head on. In Ms case, all the cases fall within this statutory 6 months’ timeline, with the exception of the assault by faculty, which occurred 9 months prior to the filing. For example, the student union failed to include a referendum that would prevent exclusion of black students on March 22nd 2022, but held other referenda for matters of higher import to them. Similarly, the grade manipulations by faculty occurred in February 2022, and the racially motivated lack of adherence to school policy and Irish law with regards to mental health parity and accommodations occurred in June 2022. Furthermore, the WRC also permits that these timelines to report matters are guidelines, and that it is the adjudicator who may decide whether to grant extra time for complaints and may extend the time for filing to the WRC by up to 12 months, and sometimes in excess of 12 months, based on the circumstances. In this capacity the WRC adjudicator will be fair to appreciate that Ms was a medical student at the time of these onslaught of race-based attacks against her, and that she still was obliged to participate in pre-fixed exam dates and meet other assignment deadlines, barring illness, as per school policy. Thus, Ms was not at full liberty to plan her own schedule, take time off to establish a complaint, and still be compliant with her medical studies. Thus, she sought to put her head down and focus on why she was enrolled in medical school, and ignore their ignorance and eventually willful, vindictive acts of race based prejudice towards her. The WRC adjudicator, would also further appreciate and provide reasonable accommodations for any time lapses, should he find that such may exist, because Ms was still new to Ireland, having just arrived 2 years prior, with 1 year in lock down owing to Covid. Thus, it is neither a reasonable nor fair presumption to expect a foreigner to be equipped with the same level of knowledge as an Irish native with regards to Irish statutes and laws, human rights protections, the WRC and complaints procedure. When she first laid her complaint of assault and flagged acts of discrimination to the school, none of this knowledge was volunteered to her. The defendant’s response was to further conspire to victimize her, by further manipulatingher grades in a bid to cover up their reputation and undermine the credibility of Ms claims. Furthermore, the WRC adjudicator will appreciate that Ms ardently sought to exhaust all internal remedies before filing a complaint with the WRC. In this capacity, Ms asserts and counters the defendant’s response that she did not follow internal complaints procedures. Rather it is partly because she followed such procedures, seeking relief from multiple people and bodies within Redacted, that her complaints were not filed immediately, though were yet still timely. All evidence files within Ms possession were ready to be presented on July 5th 2023 at the time of the hearing. In the appendix of this submission are some of the letters sent to the head of school, where Ms attempted to resolve matters internally and educate faculty on unconscious bias and prevent further victimization and acts of racial prejudice against her. The defendant would respond that Ms claims were vague and irrational. Redacted denial of wrongdoing, oft delayed and protracted response also affects the ability to fully comply with time constraints in legal proceedings. For example, the defendant is still holding onto evidence files requested 6 months ago by the complainant.
The Complainant has been provided with time to detail and present her case at a reconvened hearing relating to the application to dismiss for failure to notify the Respondent pursuant to section 21(2) in the first instance on time and to detail her complaints to the Respondent prior to seeking redress to this tribunal:
(2) 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,
Based on what has been referred to the Commission on the 6h of July 2022 the last referenced date on the form in complaint 1 appears to be May 2022 however this is not the date of the alleged assault and prohibited conduct, which is stated to have occurred in September 2021. And in complaint 2, the 25th of March 2022 is referenced as a date when alleged prohibited conduct occurred (alleged discriminatory marking). However, May 2022 in complaint 1 is not referred to as an incident of prohibited conduct rather it is a record that the alleged perpetrator denied that the assault ever occurred. The alleged prohibited conduct complained of (assault) is stated to have occurred in September 2021. A denial of an allegation cannot be classed as an act of prohibited conduct. Complaints 3 and 4 referred to the Commission are not detailed on the ES 1 form. The ES 1 form is dated the 12th of June 2022 which is a Sunday and received on the 13th of June 2022 at the earliest, the last alleged incident of prohibited conduct referred to the Commission is the 25th of March 2022 and that related to alleged discriminatory grading practices. This incident occurred more than 2 months prior to lodging her complaint and had not been notified to the Respondent in the first instance as set out at section 21 (2) of the Act. The alleged assault referred to the Commission occurred in September 2021 and is significantly out of time based on section 21(2) and section 21(6) of the Act:
(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 period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or 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.
In her written submission the Complainant has argued that in fact her complaints are within time. No case has been made out to explain why a delay occurred based on the date of prohibited conduct having occurred more than 2 months prior to serving an ES 1 notification or why the Respondent was not notified at all of 2 grievances pursuant to section 21(2) of the Equal Status Act 2000 as amended.
Reasonable Cause:
The Respondent relies upon Skanska and the Labour Court’s decision is consistent with Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:
In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" as follows:
"The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."
The Respondent has made out a detailed case why this tribunal does not have jurisdiction to hear the complaints before it pursuant to section 21.
The first hurdle relates to the failure to provide 2 months’ notice to the Respondent relating to the alleged incidents of prohibited conduct pursuant to section 21 of the Equal Status Act 2000 as amended, for any of the complaints referred to the Commission and why the Complainant has failed to notify the Respondent of 2 of these complaints as set out in the Act but not notified to the Respondent as required by the Act.
The Complainant has not made out a case of reasonable cause to explain the delay to notify the Respondent on time pursuant to section 21 (2).
Ongoing and Continuing Discrimination:
It is possible to make out a case of ongoing discrimination that arguably brings all the incidents into a line of connected wrongs. Section 21(11) states:
(11) For the purposes of this section prohibited conduct occurs-
(a) if the act constituting it extends over a period, at the end of period
(b) if it arises by virtue of a provision which operates over a period, throughout the period.
The alleged incidents of prohibited conduct are not one act or could be argued to be similar and on the fact of the description of each wrong constitute 4 separate complaints. While all the acts are described as discriminatory that does not meet the requirement that the matters complained of are one act. Even allowing for the possibility of ongoing discrimination, the last incident of alleged prohibited conduct referred to the Commission and that also meets the requirement to notify the Respondent prior to referring the allegations to the Commission, is the 25th of March 2022, and the ES 1 form is dated the 12th of June 2022, which means the complaint is out of time pursuant to section 21(2). The complaint relating to assault is stated to have occurred in September 2021 While later dates are detailed in the complaint form made to the Commission, dates referenced in complaints 3 and 4 were never notified to the College pursuant to section 21(2) within or outside the statutory timeframe of 2 months and based on reasonable cause within 4 months.
Allowing for the fact that relevant case law relating to equality matters have been made by employment tribunals, relevant authorities determined by the Labour Court are cited in Equal Status cases. The Labour Court in Hurley v County Cork VEC (EDA1124) said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. The case of the Department of Justice Equality and Law Reform v A Worker(EDA1422), which involved a complaint of alleged discrimination by a prospective employer and the Labour Court determined that the complainant had failed to prove a continuum of discrimination between historic alleged instances of discrimination outside of the six month referral period, and the alleged acts that the Court considered "in time" stating that the complainant failed to "establish a sufficient connection between the competitions such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions".
Set Aside:
The obligation to notify the respondent can be set aside pursuant to section 21 (3) where the tribunal is satisfied that:
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.
In law exceptionally is a very high threshold to reach. I am not satisfied in the particular circumstances of this case that subsection 2 should be set aside as the exceptional reasons being proffered is that a physical assault took place; that caused post traumatic stress disorder. These are assertions and do not explain the delay or failure to notify, which is the purpose of setting aside subsection 2 if exceptional reasons exist. The medical statement or certificate is dated 26th of June 2022. The allegation of assault is categorically denied. It also the case that both the Complainant and her parents continued to make representations to the College after the alleged date of assault in September 2021. It is therefore not compelling evidence that trauma prevented the presentation of a complaint as required by law when the Complainant was in fact actively arguing her case after this date as detailed in extensive correspondence.
The Complainant stated she is not an Irish citizen and that she is unaware of the requirements of Irish Law. However, ignorance of the law is not a reason to set aside statutory obligations. This is particularly the case where an individual through reasonable inquiries could access that information. The Complainant is an educated applicant with third level qualifications. In these circumstances it is difficult to see how this argument can be sustained and subsection 2 be set aside concerning the obligation to meet statutory timelines. As no exceptional case has been out that this tribunal determines would be fair and reasonable, I have determined that no exceptional case has been made out to set aside section 21(2). I therefore must determine that the matters before me are time barred and that the Respondent has not engaged in prohibited conduct and dismiss the complaints for not being on time and not being properly notified to the Respondent.
I have determined that the Complainant has failed to meet the requirements pursuant to section 21 to either notify the Respondent relating to complaints 1 and 2 within 2 months of the prohibited conduct occurring or not notifying them at all of her grievances concerning complaints 3 and 4 and her intent to progress under the Act if not satisfied with the Respondent’s response. The Complainant has not provided a reasonable cause to explain the delay or set out exceptional reasons why in this case it would be fair to set aside the requirement pursuant to section 21 (2) of the Act. No exceptional case has been made out where I could determine that it would be fair and reasonable to set aside subsection 2 of the Act. I have determined that no exceptional case has been made out to set aside section 21(2). I therefore must determine that the matters before me are time barred and that the Respondent has not engaged in prohibited conduct and dismiss the complaints.
Summary of Complainant’s Case:
See preliminary matter |
Summary of Respondent’s Case:
See preliminary matter |
Findings and Conclusions:
I have determined that the Complainant has failed to meet the requirements pursuant to section 21 to either notify the Respondent within 2 months of the prohibited conduct occurring or not notifying them at all of her grievances and her intent to progress her complaints under the Act if not satisfied with the Respondent’s response. I find in favour of the Respondent that none of the matters complained of were made within 2 months of the incidents occurring pursuant to section 21. I find that the Complainant failed to notify the Respondent in the ES 1 form of her complaint relating to Reasonable Accommodation. I find that the Complainant failed to notify the Respondent in the ES 1 for of her complaint concerning the Students Union and access to Clubs and Societies. The Complainant has not provided a reasonable cause to explain the delay for all 4 complaints as detailed in her Workplace Relations Commission complaint form. The Complainant has not set out exceptional reasons why in this case it would be fair to set aside the requirement pursuant to section 21 (2) of the Act, other than to state that her allegations are true. I therefore must determine that the matters before me are time barred and that the Respondent has not engaged in prohibited conduct and dismiss the complaints. |
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.
The statutory provisions require that the Complainant must notify the Respondent of what she considers to be alleged prohibited conduct within 2 months of the alleged prohibited conduct occurring. I have determined that the Complainant has failed to meet the requirements pursuant to section 21 of the Act to either notify the Respondent within 2 months of the alleged prohibited conduct occurring or from the last incident occurring if relevant, or not notifying them at all of 2 grievances. And not informing the Respondent of her intent to progress her complaints under the Act if not satisfied with the Respondent’s response. The complaints relating to reasonable accommodation and also the Students Union and access to Clubs and Societies are not properly before me as they were not notified to the Respondent pursuant to section 21 of the Act and therefore, I dismiss these complaints. The Complainant has not provided a reasonable cause to explain the delay to notify the Respondent on time or set out exceptional reasons why in this case it would be fair to set aside the requirement pursuant to section 21 (2) of the Act relating to her complaints presented to the Commission. I dismiss all the Complainants complaints as they are out of time or not notified at all to the Respondent pursuant to section 21(2) of the Act: 1. Physical Assault, Harassment and Victimisation (not notified to the Respondent within 2 months). 2. Discriminatory Practices in Academic Evaluation of Clinical Practices (not notified to the Respondent within 2 months). 3. Discriminatory Practices in the Provision of Reasonable Accommodation for Mental Health Illness and Disability (not notified to the Respondent at all pursuant to section 21). 4. Discriminatory Practices from Access to Clubs and Societies (not notified to the Respondent at all pursuant to section 21). I determine that the Complainant has not engaged in prohibited conduct and dismiss all complaints made against them arising from the failure of the Complainant to notify the Respondent as required by the Act on time. |
Dated: 09/11/2023
Workplace Relations Commission Adjudication Officer: Brian Dalton
Key Words:
Notification-Time Limits |