Complainant

Respondent

Parties

Jean Harrington

Minister for Social Protection

Representatives

Self-Represented

Mr. Niall Fahy BL, instructed by the Chief State Solicitor’s Office

Act

Complaint Reference No.

Date of Receipt

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

CA-00054483-001

24/11/2022

On 24th November 2022, the Complainant referred the present complaint to the Commission. Herein, she inferred that the Respondent’s failure to allow her companion to travel under the terms of her free travel pass constitutes discrimination on the grounds of “family status”. In denying this allegation, the Respondent submitted that the Complainant had not been treated any less favorably than any other person than any other person under the terms of the present Act, and consequently had not suffered any form of discrimination.

A hearing in relation to this matter was convened for, and finalised on, 21st July 2023. During the hearing both parties made substantial submissions as regards their respective positions. As the matter did not involve a conflict of evidence as to the factual basis for the Complainant’s case, no witness evidence was called by either side.

At the outset of the hearing a preliminary issue was raised as to my jurisdiction to hear the present complaint. As this matter will be determinative of the entire proceedings, it will be considered in advance of the substantive matter.

By submission, and at the outset of the hearing, the Respondent submitted that the Complainant had not complied with the notification requirements stipulated by the Act. In particular, they submitted that the Complainant had not served any form of notification, either by way of form ES1 or correspondence, notifying the Respondent of the allegations and setting out an intention to bring the matter to hearing. In addition to the same, it was further submitted that the Complainant had not established the existence of any exceptions that might allow the Adjudicator to waive the requirement in accordance with Section 21(3)(a)(ii) of the Act.

Notwithstanding the foregoing, the Respondent submitted that they were willing to meet the complaint on the grounds submitted by the Complainant, and lodged a full defence in this regard.

At the outset of the hearing, the Complainant accepted that she had not issued notification to the Respondent in accordance with the requirements of Section 21 of the Act.

Notwithstanding the same, the Complainant submitted that the exception provided for in Section 21(3)(a)(ii) should apply as she was a lay litigant and was unaware of the process in relation to the referral of such disputes.

Prior to assuming jurisdiction in relation to this matter, a Complainant must establish that they have complied with the notification requirements stipulated by the Act. In particular, Section 21(2) of the Act (as amended) provides that,

“Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act”.

Thereafter, subsection 4 provides that,

“The Director of the Workplace Relations Commission…shall not investigate a case unless the Director of the Workplace Relations Commission…satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.”

Regarding the present matter it is common case that the Complainant did not comply with these requirements and, ordinarily, she would enjoy no jurisdiction under the impleaded Act.

Notwithstanding the same, the Complainant sought to rely of the exemption to this requirement set out in Section 21(3)(a)(ii). This subsection provides that,

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

In seeking to apply this exception, the Complainant submitted that she was aware of the notification requirements as set out above. She submitted that, as a lay litigant with a valid concern, she should be entitled to pursue her complaint without the application of such onerous and unnecessary procedural requirements.

In considering this application, I am mindful of the authority of G -v- Department of Social Protection [2015] IEHC 419. Here in considering the application of the Act generally, O’Malley J. stated that,

“...the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”

In considering the Complainant’s application, I am conscious that she referred the present complaint without any form of external legal assistance. She also took the time to attend a hearing scheduled for this purpose and presented her complaint in a logical and concise manner. Notwithstanding the same, the fact remains that I cannot assume jurisdiction to issue a decision under the same without either proof of compliance with Section 21(2) or the application of the exception provided for in Section 21(3).  In this regard the Complainant’s application cannot be said to be exceptional for these purposes. The nature of the notification requirement is that it applies to all litigants regardless of whether they are represented or not. The Complainant’s application in this regard is essentially based on a lack of understanding of the relevant process at the time of referring the complaint. It has been long established that such a failure does not constitute a valid ground for an extension of time, or in this particular matter, the waiver of the notification requirement.

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

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

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

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

In more recent times, in the matter of Parent -v- A Primary School ADJ-00043954, the failure to comprehend the legal requirements for the referral of such complaints was not held to be a valid ground for the waiver of the notification requirement in this forum.

Having regard to the foregoing, I find that the I cannot assume jurisdiction to hear the complaint.

I find that the Complainant has not complied with the notification requirements stipulated by Section 21 of the Act.

In such circumstances I cannot find that the Respondent has engaged in prohibited conduct and, as a consequence of the same, the complaint is not well-founded.

Notification, Exceptional, Waiver