ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00043954
Parties:
| Complainant | Respondent |
Anonymised Parties | Parent on behalf of his daughter | Primary School |
Representatives | Self | Rosemary Mallon BL instructed by Mason Hayes and Curran |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00054274-001 | 22/12/2022 |
Date of Adjudication Hearing: 05/07/2023 &06/09/2023
Workplace Relations Commission Adjudication Officer: Marie Flynn
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.
At the adjudication hearing, the parties were advised that, in accordance with the Workplace Relations (Miscellaneous Provisions) Act 2021, hearings before the Workplace Relations Commission are now held in public and, in most cases, decisions are no longer anonymised. However, this case concerns a minor. In accordance with the longstanding practice of the WRC, I have exercised my discretion and have anonymised the parties in order to protect the identity of the minor.
The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation. All participants who gave evidence were sworn in. Both parties were offered, and availed of, the opportunity to cross-examine the evidence.
Where I deemed it necessary, I made my own inquiries to better understand the facts of the case and in fulfilment of my duties under statute.
Background:
The Complainant’s daughter has a disability. The Complainant alleges that his daughter was discriminated against by the Respondent when she was removed from the classroom and left to sit outside for long periods of time without access to her prescribed occupational therapy equipment and without adequate supervision from teaching staff. The Respondent rejects the complaint. |
Preliminary Issue: Time Limits
Summary of Complainant’s Case:
The Complainant’s referral under the Equal Status Act 2000 was received by the WRC on 22 December 2022. On 30 January 2023, the Complainant wrote the WRC seeking an extension to the time limits in relation to his complaint. The gist of the Complainant’s correspondence was that, while he was aware that there were time limits covering the submission of equal status complaints to the WRC, he was not aware that he could bring a complaint to the WRC on behalf of a child against a school. The Complainant said that he was only made aware of this possibility due to a report on public broadcasting at the end of October 2022 concerning a parent who had referred a case against a school to the WRC on behalf of a child. The Complainant wrote that he appreciated that he should have been aware of the WRC’s procedures for making a complaint and the time limits involved. However, at the time of his child leaving primary school she was very distressed about her experiences in school as were her parents. Her parents decided to dedicate the summer to boosting her self-esteem and confidence which included a 10-week block of therapy with a child psychotherapist. The family tried to put the bad experiences with the school behind them and this was where their energies were focused at the time. The Complainant asked the WRC to consider extending or removing the required 2-month time limit for notifying the Respondent and extending the time limit for the submission of a complaint to the WRC from six to twelve months. The Complainant asked that these time limits be looked at due to the serious nature of the complaint and how his daughter, who has a DCD (Developmental Coordination Disorder) diagnosis, was in her parents’ view badly affected by practices carried out by the school which were discriminatory in the extreme and had a serious damaging effect on her self-esteem, self-image and emotional well-being. The Complainant asserts that himself and his wife raised concerns with the school on numerous occasions since October 2021 right up until their daughter left the school at the end of June 2022. The Complainant also added that that himself and his wife previously complained to the school’s Board of Management about their daughter’s treatment and were informed by the Chairperson of the Board, in writing, that dealing with the complaint was not within his role. The Chairman never provided information on alternative pathways to make such a complaint. The Complainant also submitted a number of medical certificates attesting to his wife’s ill health at various times during 2022. After the first hearing in the case, which was held on 5 July 2023, the Complainant wrote to the WRC to address the Respondent’s legal representative’s assertion that his complaint was out of time and that that his wife’s illness would not have prevented him from submitting a complaint within the required timeframe. The Complainant said that he would like to add to his earlier submission regarding time limits. The Complainant submitted that his wife was on medically certified leave from 20 June 2022 to 20 September 2022 due to a very serious and stressful incident at her place of work and again from 10 October 2022 to 09 December 2022 due to a medical condition and pain. During this time, he was under enormous stress and pressure with his wife unable to leave the house some days due to her certified conditions which put him under great pressure at the time trying to balance work, which includes a lot of night shifts, as well as looking after his family’s needs. The Complainant contends that this was also an extremely stressful time for him because of the difficulties his daughter was having in school and the effect it was having on her emotional wellbeing and self-esteem. The Complainant and his wife got negative reports home almost daily from the school referring to their daughter’s difficulties in school. In December 2021 they were informed by the school that their daughter had said that she wanted to kill herself and didn’t want to be alive. They were also informed that their daughter would hit her head with her knee and try to poke her eye with a pencil. She would not eat or take drinks in school for months due to bullying and teasing about her appearance and would come home very hungry and thirsty which was deeply worrying for them. The Complainant says that this had an enormous effect on him at the time resulting in him not being able to sleep at night and constantly worrying every night and day about his daughter’s wellbeing, self-esteem and confidence after it was reported to himself and his wife that she was saying and doing those things in school. The Complainant also submits that at that time his daughter refused to leave the house until after dark believing that other kids would recognise her as being the girl who was always sitting in the corridor in school and was always in trouble. The Complainant contends this was totally out of character as his daughter loves to bring her dog for a walk every evening. He noticed a deeply worrying change in his daughter which was extremely difficult for him to watch. His daughter would cry at bedtime and talk about sitting alone in the corridor. She wouldn’t sleep in her own room for almost her entire time in 6th class and had episodes of bedwetting which hadn’t happened since she was a toddler. It was extremely stressful for the Complainant and his wife to watch their daughter’s self-confidence and emotional wellbeing suffering like that due what was happening in school especially after the progress she had made over the previous summer regarding her confidence and mixing with peers. Her parents had to organise for their daughter to attend a 10-week block of therapy/psychotherapy sessions during the summer months from 20 June 2022 up until and including the 29 September 2022 along with a 5-week emotional regulation program ran by a psychologist in order to help her deal with her negative experience of school. The Complainant submits that the issues he outlined regarding the impact that the school situation was having on their daughter’s self-esteem, self-confidence and emotional wellbeing and the enormous pressures that they as a family were under during this extremely difficult period for her and themselves provides “reasonable cause” for a delay in submitting a complaint to the WRC. The Complainant requested that the 2-month ES1 notification limit be waived and that the period for submitting the complaint to the WRC be extended to 12 months. |
Summary of Respondent’s Case:
The Complainant sent an ES1 notification form to the Respondent which was dated 15 November 2022. The WRC claim form was lodged on 22 December 2022. The claim form alleges that the first date of discrimination was 27 September 2021 and that the most recent date of discrimination was alleged to be 9 May 2022. The Equal Status Acts require that a Complainant sends an ES1 form to the Respondent within 2 months of the most recent occurrence of the treatment about which they are complaining. This can be extended to four months if it is fair and reasonable to do so. On the basis of the Complainant’s own WRC claim form, the most recent date of discrimination was 9 May 2022. Therefore the 2-month timeframe for sending an ES1 form to the Respondent ended on 8 July 2022 and the 4-month time frame (if an extension is granted) ended on 8 September 2022. The ES1 form was not sent until 15 November 2022, and this is far outside the maximum 4-month time limit and therefore the case is out of time. In this regard the Respondent places reliance on section 21 of the Acts. The Respondent also recognised that in exceptional cases that time limit can be disregarded where it is fair and reasonable to do so. It is submitted that there is nothing exceptional in this case that means that the statutory time frame should be waived. It is noted that the Complainant in his correspondence to the WRC is seeking an extension of time. It is respectfully submitted the Complainant’s reasons for an extension do not satisfy any test or either reasonableness or exception. Lack of knowledge about the law has never been accepted by the WRC, the Labour Court or indeed the Courts as grounds for an extension of time. It is well accepted that ignorance of the law is no defence. Stress and pressure and the alleged ill health of one parent do not satisfy the test. Every litigant is under pressure and stress. The Complainant in this case is the father and not the mother whose ill health was referred to. No evidence of any kind has been presented in relation to how the alleged ill health of the mother would prevent the sending of a ES1 claim form in time. Without prejudice to the foregoing even if the time limit for the ES1 form was waived the claim is still out of time. The last date of alleged discrimination on the claim form was 9 May 2022. The claim form was lodged on 22 December 2022 which is more than 7 months after the last alleged incidence of discrimination. In this regard it is submitted that no “reasonable cause” as referred to in Section 21(6) of the Act as amended can be relied on to extend that time frame. The Respondent relies on the Labour Court case of Hewlett-Packard Ireland Limited v. Jakub Zajaczkowski where the Labour Court held: “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338Cementation Skanska (Formerly Kvaerner Cementation) v Carroll. Here the test was set out in the following terms: - It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time. In that case, and in subsequent cases in which this question arose, the Court adopted an approach analogous to that taken by the Superior Courts in considering whether time should be enlarged for ‘good reason’ in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986. That approach was held to be correct by the High Court in Minister for Finance v CPSU & Ors [2007] 18 ELR 36. The test formulated in Cementation Skanska (Formerly Kvaerner Cementation) v Carroll draws heavily on the decision of the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. Here Costello J. stated 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 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 O. 84 r. 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.” |
Findings and Conclusions:
The first matter I must decide is if I have jurisdiction to hear this complaint. In making my decision, I must take account of both the relevant legislation and the legal precedent in this area. The Equal Status Acts require a Complainant to comply with two separate time limits. 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, or exceptionally, may disregard the time limit requirement. 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. The Complainant has sought an extension of both time limits.
Notification of Respondent (ES1) The Complainant notified the Respondent of the alleged prohibited conduct on 15 November 2022, some six months after the occurrence of the alleged prohibited conduct. The Complainant and his wife presented as very caring parents who want to do their best for their daughter. Whilst I have great empathy with them and their daughter, I am bound by the parameters of the legislation and specifically section 21(2) and 21(3) of the Equal Status Act 2000 in this case. From careful reading of the Complainant’s submissions, I have come to the view that the real reason for the delay in notifying the Respondent of the alleged discriminatory behaviour was due, in the main, to the Complainant’s lack of knowledge of the WRC adjudication service as an avenue of redress in equal status cases such as this and that he only became aware of the possibility of referring a case to the WRC when he was informed of a similar case through the media. In Globe Technical Services Limited and Kristin Miller (UD/17/177), the Labour Court found that ignorance of the law cannot be relied upon to provide an excuse for the delayed submission of an initiating complainant referral form: “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.” Accordingly, I find that the Complainant has not shown exceptional cause to empower me disregard the time limit for notifying a respondent of alleged prohibited conduct as prescribed under the Equal Status Act, 2000.
Submission of Complaint to the WRC The Complainant’s complaint referral form was received by the WRC on 22 December 2022. In accordance the provisions of section 21(6)(b), the alleged discriminatory treatment to which the complaint form relates is required to have occurred during the preceding six months i.e., on or after 23 June 2022. In his complaint referral form, the Complainant has given 9 May 2022 as the most recent date of discrimination. In order for his complaint to be on time, a referral would have to have been made to the WRC by 8 November 2022 i.e., six months after the most recent date of discrimination. I have already found that the delay in the Complainant notifying the Respondent of the alleged prohibited conduct was due to his lack of knowledge of the WRC as a possible route of redress in cases such as his. I am of the view that the delay in submitting a complaint to the WRC occurred for the same reason. It is well settled that ignorance of the law does not provide reasonable cause for extending the time limit for the referral of a case to the WRC. Accordingly, I find that the Complainant has not shown reasonable cause to empower me to extend the deadline for the submission of this complaint under the Equal Status Act 2000. Taking all of the foregoing into consideration, I am satisfied that the notification requirements set out in Section 21 of the Equal Status Act 2000 were not complied with. |
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.
Having carefully considered all evidence available to me, I find that the Complainant has failed to comply with the time limits as set out in section 21 of the Equal Status Act 2000. I find, therefore, that this complaint is not well founded. |
Dated: 24th October 2023
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Out of time – lack of jurisdiction. |