ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00046423
Parties:
| Complainant | Respondent |
Anonymised Parties | A parent on behalf of her child who has a disability | A Crèche |
Representatives | Sharon Dillon-Lyons BL instructed by Gleeson McGrath Solicitors | MP Guinness BL instructed by KM Solicitors LLP |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00056403-001 | 28/04/2023 |
Date of Adjudication Hearing: 16/10/2023 &19/02/2024
Workplace Relations Commission Adjudication Officer: Marie Flynn
Procedure:
Procedure:
In accordance with Section 25 of the Equal Status Act, 2000,following 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.
I have taken the time to carefully review all the evidence both written and oral. Much of the evidence was in dispute between the parties. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.
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.
The Complainant was represented by Sharon Dillon Lyons BL instructed by Andrew Murnaghan of KM Solicitors LLP. A former employee of the Respondent also gave evidence on behalf of the Complainant. This witness was required to attend the hearing by the Adjudication Officer in accordance with section 34 of the Act which provides, inter alia, that an Adjudication Officer may require any person, who in that Officer’s opinion is in possession of, or has in his or her power or control, any information that is relevant to the exercise of the Adjudication Officer’s statutory functions, to furnish that information and where appropriate, to require that person to attend before her for that purpose.
The Respondent was represented by MP Guinness BL instructed by Emma O’Neill of Gleeson McGrath Baldwin Solicitors. Three senior members of staff and a representative from the Respondent’s insurer attended on behalf of the Respondent.
Background:
The Complainant in this case is a parent who is taking a case on behalf of her child who has a disability. The Respondent is a crèche. The complaint relates to the alleged exclusion of the Complainant’s son from a class excursion on 4 May 2022 because of his disability. The complaint form was submitted on 28 April 2023. |
Summary of Complainant’s Case:
The Complainant submits as follows: Preliminary matters - applications pursuant to section 21(3)(a)(ii) and section 21(6)(b) The Complainant’s mother has complained orally to the Respondent about the prohibited conduct. Further, she has sought specific policies of the Respondent in order to bring a complaint in relation to the prohibited conduct. It is however accepted that no ES1 was submitted. While the ES1 form is the form most often submitted to comply with the notification requirement as set out in section 21(2) of the Equal Status Act 2000, as amended (‘ESA’), there is no obligation to send an ES1 form once the statutory provisions are complied with. The Complainant has limited knowledge about the procedure through which she could complain about the discriminatory treatment of her son. She did express her unhappiness about what occurred and expressly requested associated policies in order to advance and inform her complaint. The lack of engagement with the Respondent frustrated the Complainant’s ability to advance her complaint in a timely manner. While the failure to provide the policies sought is not tantamount to misrepresentation as per section 21(6)(7), it is clear by reference to that section that the legislator intended the WRC to consider acts of the Respondent which create barriers to the bringing of timely complaint, in assessing compliance with the limits set out therein. With regard to compliance with section 21(2), that section provides that: “(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, …” It is submitted that the section is expressed in terms which are directory rather than mandatory. This was found to be the reasoning adopted by Dunne J in respect of the wording “shall make a decision” in section 37(2) of the Valuation Act 2001 in Cork County Council v Valuation Tribunal [2007] IEHC 311. In that case, the Court found that: “It seems to me that in this regard the provisions of s. 37(2) are directory rather than mandatory. One only has to consider what would happen to appeals if a decision was not furnished within six months. Does that mean that all such appeals are automatically invalid or liable to be struck down? That cannot be the purpose of the provision. Rather it seems to me that the legislature was setting a time limit within such decisions should be furnished and providing some certainty to parties as to when they are entitled to require or compel the Valuation Tribunal to furnish a decision. Accordingly, I reject the argument of the applicant in this regard.” In Cork County Council, the Court referred to McAnenley v An Bórd Pleanala [2002] 2 1.R. 763 where Henchy J. said as follows (p. 110): - "Whether a provision in a statutory instrument, which in the face of it is obligatory, for example, by the use of the word "shall", shall be treated by the courts as truly mandatory or merely directory, depends on the statutory scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory and will not excuse a departure from it. But if, on the other hand what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and the scheme of the statute, non compliance may be excused.” It is submitted that in considering the legislation and the impact of a failure to comply with section 21(2) in full, it ought to be considered as non-compliance with a directory rather than mandatory provision. Indeed section 21(2) cannot be said to be mandatory in any true sense where there are express permissions for the disapplication of the requirement provided for at section 21(3). Section 21(3)(a)(ii) provides that: “exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that section (2) shall not apply in relation to the complainant to the extent specified in the direction,” It is submitted that the statutory inclusion of “exceptionally” ought to be interpreted as an effort by the legislator to regularise the notification requirement rather than confining the application of section 21(3)(a)(ii) to exceptional cases. It is submitted that section 21(3)(a)(ii) means that the WRC can apply 21(3)(a)(ii) where satisfied that it is fair and reasonable in the particular circumstances of the case. In considering whether or not to apply section 21(3)(a)(ii) the Act provides, at 21(3)(b), that: “(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commissionor, 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.” In considering these criteria the Complainant submits that the Respondent was aware of her dissatisfaction following the exclusion of her son through her initial discussions with a number of members of staff and subsequent requests for documents. Further, the Complainant submits that there is no prejudice served upon the Respondent by the application of section 21(3)(a)(ii). In this regard the Complainant relies on the decision of the Equality Tribunal in Andrew Ennis v Navan O'Mahony's Football and Hurling Club DEC-S2010-031, where the complainant had failed to satisfy the notification requirements. The Equality Officer in considering the circumstances which would permit its use stated: “It is critical to note that, in considering these circumstances, account must be taken of whether and to what extent prejudice arises in relation to the respondent. However, I believe the exception is there to provide for a particular set of circumstances, that, inter alia, might flow from a technical failure to meet the notification requirements of the Acts in circumstances where, but for this technical breach, an unrepresented complainant would have clearly and unambiguously met the necessary notification requirements.” In the recent case of Katrina Phillips v Amy Cunningham ADJ-00041157, a decision of 23 August 2023, the Adjudication Officer applied section 21(3)(b)(ii) and stated: “Having regard to the relevant circumstances, I am satisfied that the respondent was aware of the circumstances of the alleged prohibited conduct and that the respondent, and her legal team are not at any risk of prejudice in their ability to deal adequately with the compliant. Accordingly, I find that it is fair and reasonable in the specific circumstances to direct the notification requirement under Section 21(2) shall not apply in relation to this compliant.” The Complainant submits that section 21(3)(b)(ii) ought to be applied in this complaint for the following reasons: · the Complainant was not legally represented within the window at which an ES1 might have issued in accordance with the ESA; · the Complainant was not aware of how to advocate on behalf of her son by reference to the infrastructure of the ESA; · the Complainant is the parent of young children one of whom has a disability and associated support needs and accordingly the expectation that she comply within the formalism prescribed by ESA is, in all of the circumstances, excessively burdensome; · the Complainant sought to advance her complaint internally and only had recourse to a solicitor following her inability to resolve matters with the Respondent and followed the failure of the Respondent to provide policies and/ or representations which addressed her complaint in full and; · The Complainant’s son is a minor who cannot make complaint on his own behalf. In relation to the final point made above, Brennan v Western Health Board [1999] IEHC 162 is a useful authority. That case concerned an application brought by the defendant to strike out the claim of the plaintiff on the grounds of inordinate and inexcusable delay in the commencement of the proceedings. The proceedings issued when the plaintiff was 21 years of age and concerned personal injuries litigation from a birth injury sustained by the plaintiff at her birth. Macken J stated: “What appears from the authorities, so far as they go, on this matter is that delay caused by the servant or agent of a party may not be taken into account unless such servant or agent was under the control of the party against whom delay is pleaded. Here, as in almost all cases involving infants there could be no control by the plaintiff over her parents while she was a minor, and no suggestion is made that such was the case.” It is submitted that a specific allowance ought to be made in cases where Complainants are minors to ensure that the application of section 21(2) does not cause an unjust result. Finally, it is submitted that the circumstances particularised constitute “reasonable cause” in requesting that the WRC make a direction pursuant to section 21(6)(b) extending the time to 12 months since the date of the prohibited conduct. It is submitted that the term “reasonable cause” ought to be constructed literally and where the circumstances presented are reasonable, as it is submitted is the case here, then the time ought to be extended. Of particular note is the recent decision of Karen Duffy v Catherine Kavanagh CK Media Training ADJ-00038002, a decision of 23 May 2023 where the Adjudication Officer noted that reliance on “reasonable cause”, as for example has been measured in the Cementation Skanska line of jurisprudence, should not apply to an extension of time under the Equal Status Acts. In granting an extension of time, the AO stated: “I am of the view that this constitutes reasonable cause and this time limit should also be extended to allow me to consider the complaint. For the sake of transparency I would note that this application arises in the context of the Equal Status Act and I am of the view that it would be inappropriate to apply the body of case law arising from the Labour Court when deciding time extensions in complaints under unrelated employment legislation.”
Section 21(3)(a)(ii) and section 21(6)(b) and EU law The Complainant submits that the WRC ought to interpret section 21(3)(a)(ii) and 21(6)(b) in line with the requirements of the Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Article 7(1) provides: “Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation procedures, for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.” Article 8 of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between women and men in the access to and supply of goods and services provides a similarly worded requirement. The Complainant further submits that the imposition of a procedure to bring a complaint exercising rights under these Directives cannot be so strictly construed as deny a complaint an effective remedy as provided for in Article 47, EU Charter of Fundamental Rights. In Asociaţia Accept v Consiliul Naţional pentru Combaterea Discriminării, Case C-81/12, the CJEU recognised that reasonable time periods for bringing proceedings in the interests of legal certainty are legitimate, and not in breach of the principle of effectiveness, that recognition is subject to the caveat that such time limits do not render practically impossible or excessively difficult the exercise of rights under the Equal Treatment Directive. That case dealt with a preliminary ruling concerning procedures used in Romanian Courts whereby the limitation of six months for the imposition of fines was concerned. In holding that Article 17 precluded the national rule concerned, the Court commented on the well settled jurisprudence that: “where a situation falls within the scope of a directive, national courts are obliged, when applying national law, to interpret the latter as far as possible in light of the wording and the purpose of the directive concerned in order to achieve the result envisaged by it (see, to that effect, Case 14/83 von Colson and Kamann [1984] ECR 1891, paragraphs 26 and 28; Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Case C-196/02 Nikoloudi [2005] ECR I-1789, paragraph 73; and Case C-406/08 Uniplex (UK) [2010] ECR I-817, paragraphs 45 and 46).” It is submitted that the application of section 21(2) to this complaint must be consistent with the purpose of the Directives underpinning the Equal Status Act and that an overly conservative interpretation is not allowed for. The Complainant submits that there is a question about the compatibility of the notification requirement as per section 21(2) with the Directive, with specific regard to the principle of equivalence, whereby no equivalent notification requirement exists in the pursuit of discrimination in a licensed premises. In such case the complaint must be brought under the Intoxicating Liquor Act 2003 in the District Court. Proceedings of that nature are in a form prescribed by S.I. No. 259 of 2005 which prescribes no notification requirement. In the circumstances, it is submitted that it is not clear that of section 21(2) is permissible with regard to Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. Article 8 of Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between women and men in the access to and supply of goods and services provides a similarly worded requirement and the principles of equivalence. The Complainant submits that if her analysis on section 21(2) is accepted by the Adjudication Officer, rather than exclude the complaint on notification requirements, the Adjudication Officer ought instead to disapply sections 21(2) by reference to its incompatibility with the Directive (see for example Boyle, C-378/17). In the alternative it is submitted that this is an appropriate question for preliminary reference as provided for in Article 267 of the Treaty on the Functioning of the European Union (TFEU).
Supplementary submissions The Complainant’s initial submission was made on 11 October 2023. The Complainant made a supplementary submission on 15 February 2024 to address a query raised by the Adjudication Officer about the interaction of Council Directives 2000/43/EC and Directive 2004/113/EC, which underpin the Equal Status Acts 2000, as amended, (the ‘ESA’) with this complaint where the Complainant is not relying on the grounds of race, ethnicity, nationality or gender, those being the protected grounds particularised in the relevant Directives. There is no submission made that the Complainant seeks to rely on the direct effect of those respective Directives. The submission made is in respect of the nature of the transposition of those Directives and the threshold necessarily imported into the Equal Status Acts by reference to the aims of those Directives and general principles of EU law including the fundamental principle of equality. The Directives have indirect effect, and the Complainant is entitled to rely on that principle where she has a complaint within the transposing framework of the Directives. In Bernhard Pfeiffer and Others v Deutsches Rotes Kreuz, Kreisverband Waldshut eV, Joined Cases C-397/01 to C-403/01, the CJEU (Grand Chamber) held, at para. 110-111; “… it is apparent from case-law which has also been settled since the judgment of 10 April 1984 in Case 14/83 Von Colson and Kamann [1984] ECR 1891, paragraph 26, that the Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 10 EC to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (see, inter alia, Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8; Faccini Dori, paragraph 26; Case C-126/96 InterEnvironnement Wallonie [1997] ECR I-7411, paragraph 40; and Case C-131/97 Carbonari and Others [1999] ECR I-1103, paragraph 48). It is the responsibility of the national courts in particular to provide the legal protection which individuals derive from the rules of Community law and to ensure that those rules are fully effective.” This creates an obligation to ensure a transposing measure is interpreted to give full effect to a Directive. It is submitted that in this complaint such an approach requires a purposive approach in limiting procedural rules in order to protect the right to a substantive remedy. Of further relevance is the application of the Charter on Fundamental Rights. Article 51 of that Charter provides that the Charter applies to Member States when acting within the scope of EU law. It has been held that applying national law transposing EU legislation[1], applying provisions of national procedural law to enforce substantive provisions under EU law[2] and applying a provision of national law otherwise intended to implement EU law or pursue its objectives (directly or indirectly)[3] all constitute ‘acting within the scope of EU law’. The Charter therefore requires the interpretation of the relevant Directives and Equal Status Acts, as a transposing measure, through the prism of the Charter on Fundamental Right. The Charter provides, at Article 26: The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community. Further Article 24 is relevant where the Complainant is a minor, it is provided, inter alia, that; In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. It is submitted that in applying procedural rules allowed for in the Equal Status Acts, such rules much be applied in a manner consistent with the requirements of the Charter which does not favour strict application of time limits or other barring procedural requirements in this complaint. It is noted that if a certain threshold was applicable in cases where a complainant had specific protected characteristics provided for in the underlying Directives, such as race or gender, but not in other cases where a separate characteristic arose, such as disability, that would lead to an inconsistent application of the legislation which would be an absurdity and could not be harmonious with intentions of the European or domestic legislatures. Such an approach would create internal discrimination in the application of the legislation, which is further inconsistent with the principle of non-discrimination, as set out in Article 21 of the Charter of Fundamental Rights. It is important to consider the long title of the Equal Status Act which describes the Act as: “An Act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for investigating or remedying certain discrimination and other unlawful activities, to provide for the administration by the Equality Authority of various matters pertaining to this Act, to amend the Employment Equality Act, 1998, in relation thereto and in certain other respects and to provide for related matters.” Where the Equal Status Acts service a remedial purpose, it is submitted that a purposive approach is required to be take in interpreting the statute. This approach is consistent with the jurisprudence of the Superior Courts. In Bank of Ireland v Purcell [1989] IR 327, Walsh J held, at 333: “The Family Home Protection Act, 1976, is a remedial social statute enacted to protect the interest of the non-owning spouse in the family home and to deal with and to seek to remedy the social problem which was created or could be created by the fact that the spouse who owned the family home could effectively put the other spouse out on the street by selling it or mortgaging it. This was sometimes done out of vindictiveness and the other spouse had no redress. Most frequently the victimised spouse was the wife. She and her children could be left to fend for themselves so far as accommodation was concerned. It was to secure the position of such a spouse the Act of 1976 was passed. It made provision for barring a spouse from the family home even when that spouse is the owner of that home, if such spouse was misbehaving in a manner contemplated by the Act. In particular the Act of 1976 secured the position of the non-owning spouse by s. 3 which provided that the owning spouse could not, without the prior consent in writing of the other spouse, purport to convey any interest in the family home to any person except that other spouse. This statute is not to be construed as if it were a conveyancing statute. As has been frequently pointed out remedial statutes are to be construed as widely and liberally as can fairly be done. The first consideration in construing s. 3 is to ascertain the purpose of the section. That purpose was what I have already pointed out.” This view has been endorsed in respect of the Employment Equality Act 1998 (as amended) by the Labour Court in A Government Department v A Worker EDA094 where the Court held: "The Court must take the definition of disability as it finds it. Further, as the Act is a remedial social statute it ought to be construed as widely and as liberally as possible consistent with fairness (see Bank of Ireland v Purcell [1989] IR 327)." In J.G.H. v Residential Institutions Review Committee [2018] 3 I.R. 68, Clarke C.J. stated as follows, at page 78: “The underlying principle behind the proper approach to the interpretation of remedial legislation is that it must be assumed that the Oireachtas, having decided that it is appropriate to apply public funds to compensate a particular category of persons, did not intend that potentially qualifying applicants would be excluded on narrow or technical grounds, for that would be wholly inconsistent with the purpose of the legislation.” The Equal Status Act has been held to be a remedial state by the Supreme Court in Equality Authority v Portmarnock Golf Club and Others [2010] 1 IR 671, where in Denham J’s judgment the Court stated at para 75; “….the Act of 2000 should be interpreted purposively. The Act of 2000 should be interpreted in accordance with the intent of the legislature. The Act of 2000 was a remedial social statute. Its purpose was to promote equality and prohibit certain forms of discrimination.” And at para 81 “… the long title in the Act of 2000 states that it is an Act to promote equality and prohibit, inter alia, types of discrimination - it is to remedy certain discrimination and other unlawful activities. Consequently, as it is remedial legislation the court should adopt a purposive approach in interpreting the Act, if necessary.” It is submitted that a purposive approach is the correct approach to be adopted in interpreting section 21 of the ESA and that such an approach is further consistent with the requirement to interpret section 21 in a manner consistent with EU law. |
Summary of Respondent’s Case:
The Respondent submits as follows: Preliminary Objection 1 In relation to notification Section 21(2) of the Equal Status Act 2000, as amended (“the Act”) states: “(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, and (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.” For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent. Subsection (3) allows that this period may be extended to four months in exceptional circumstances. Therefore, prior to lodging a complaint, written notification must be forwarded to the service provider as provided for in section 21(2) of the Act. An official form can be used but is not mandatary: Mongans v Clare County Council DECS 2008-039. However, the notification must satisfy the requirements provided for and these requirements are quite technical. The notification must be sent within two months of the alleged discriminatory treatment and must state the nature of the allegation and the complainant’s intention to seek redress under the Act if not satisfied by any reply received. Both of these criteria are essential. For example, in Ennis v Navan O’Mahoney’s Football and Hurling Club DECS 2010-031, a letter in which the Complainant stated “Will ye do something about this, or will I?” but did not mention the Act, was not accepted as valid notification. Similarly, the notification requirement was not complied with in O’Brian and McCarthy v Ruari’s Bar Tralee DECS 2007-039 because the notification form contained inaccurate information about the alleged act of discrimination. The time limit for notification can be extended to a maximum of four months for “reasonable cause” and in exceptional circumstances the Director may waive the notification requirement. The complainant must seek the extension of time and provide reasons that both explain and justify the delay. The power to waive the notification requirement may only be exercised where it is fair and reasonable in all the circumstances of the case. In particular, the Director must have regard to the extent to which the respondent is, or is likely to be, aware of the circumstances raised in the complaint. In Ennis v Navan O’Mahoney’s Football and Hurling Club, the notification sent by the complainant did not meet the technical requirements of the Act, but the respondent had been put on notice that Mr Ennis regarded the incident in question as a serious matter that he intended to take further. Furthermore, a complaint was referred to the Tribunal well within the six-month time limit. The Equality Officer was satisfied that in those exceptional circumstances, there was no prejudice to the Respondent and so he dispensed with the notification requirement. It is submitted in the instant case there was no such indication from the Complainant that she intended to take a claim and in fact had accepted the Respondent’s apologies and stated that she understood how the incident could have happened. The Complainant made a complaint to Tusla and never indicated she intended to take the within claim. Furthermore, the Complainant did not lodge the claim for almost 12 months. In Adeduntan v Vodafone Ireland DECS 2008-110, the Equality Officer found that the case could not be heard as the notification was sent ten months after the incident complained of. An application for extension of time failed in Yambasu and Brave v Abby Taxis DECS 2011-007. The Equality Officer was satisfied that the complainant had put no exceptional circumstances forward: “I noted on the day of the hearing that Mr Brave had a very good command of the English language. He informed me that he had been Ireland since the year 2000 and had been a taxi driver for some eight years. I also note that the Complainant is legally represented in this case. Furthermore …”. The Respondent relies on the recent decision of A Parent v A Therapist ADJ-00033461 in which the Adjudication Officer dismissed a claim for not sending the ES1 within the time limits.
Preliminary Objection 2 In the complaint form, the Complainant states that the most recent date of discrimination was 7 May 2022. Therefore, the Complainant had six months from that date within which to lodge her claim. The claim was not received until 28 April 2023 almost 12 months after the alleged discrimination. The Respondent notes in correspondence dated 3 May 2023 the Complainant’s solicitor states that he “will be seeking an extension of time to bring the Complaint if necessary”. The Respondent reserves its position in relation to the reasons given but without prejudice to that, relies on the following: The test for extending that six-month time period is whether or not the failure to present the complaint within the initial period “was due to reasonable cause”. In Salesforce.com –v- Alli Leech EDA 1615, the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time. The court stated, “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 DWT0338 Cementation Skanska – 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 of which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the fact and circumstances know 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 the circumstances not been present, he would have initiated the claim on time”. In that case, and in subsequent cases in which the question arose, the Court adopted an approach analogous to that taken by the superior courts in considering whether time should have been 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 and Others 2007 18ELR 36. The test formulated in Cementation Skanska 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 (as he then was) 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 were 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. It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay in and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of a delay. Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account”. In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the Applicant subjectively believed that he or she was justified in delaying the institution of proceedings. In that case, the court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. The Labour Court has also consistently relied on its dictum in Gaelscoil Thulach na nOg v Fitzsimons Markey EET 034 that in order to extend time limits, the circumstances must be shown to be exceptional in the dictionary sense of being out of the ordinary, unusual, special or uncommon and, if found to be so, it must also be shown that they operated to prevent the claim or appeal being lodged in time. |
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 Act 2000, as amended (“the Act”), requires 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. If, following my consideration of either of the preliminary issues leads me to conclude that I have no jurisdiction to hear this complaint, I will not proceed to consider the other preliminary issue or the substantive issue.
Preliminary issue: submission of a complaint to the WRC I will first consider the preliminary issue regarding the time limit prescribed under section 21(6) of the Act as outlined above. The Complainant’s complaint referral form was received by the WRC on 28 April 2023. In accordance the provisions of section 21(6), 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 29 October 2022. In her complaint referral form, the Complainant has given 7 May 2022 as the most recent date of discrimination. In order for this complaint to be on time, therefore, a referral would have to have been made to the WRC by 6 November 2022 i.e., six months after the most recent date of discrimination.
EU Dimension I note the Complainant’s request that I interpret section 21(6)(b) in line with the requirements of Article 7(1) of Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Article 8 of Council Directive 2004/113/EC implementing the principle of equal treatment between women and men in the access to and supply of goods and services. I accept the Complainant’s position that the Act implements the Race Directive and the Gender Goods and Services Directive. I note that the Complainant does not rely on direct effect of these Directives but argues instead that they have indirect effect and that I am obliged to interpret the transposing measures so as to give full effect to the Directives. The Complainant urges me to adopt a purposive approach to procedural rules so as to ensure that the Complainant’s right to a substantive remedy is not fettered. While I admire the Complainant’s Counsel’s sterling effort on behalf of her client to persuade me to accede to the request for an extension of time, I am of the view that it is not within my jurisdiction to confer an indirect effect on the cited Directives given that the disability ground does not come within their scope. I note the Complainant’s argument that an inconsistent application of the Act may arise if the procedural rules were applied in an expansive manner consistent with the Directives only in cases where the discriminatory ground cited fell within the ambit of the Directives. I am of the view that this case is not an appropriate case to test the validity of that argument given that the disability ground is not covered by the Directives and, therefore, as mentioned previously, it is not open to me to consider the procedural rules of the Act through the prism of the Directives. The Complainant cites Articles 24, 26 47 and 51 of the Charter on Fundamental Rights which do not favour the application of strict procedural rules such as time limits to deny complainants their right to an effective remedy. In this regard, I am mindful of the following statement of Professor Judy Walsh at page 12 of her seminal book on the Act, Equal Status Acts 2000 – 2011 Discrimination in the Provision of Goods and Services: “… EU member states must also comply with the Charter, but only when implementing EU law. National courts need to apply the Charter to cases involving the application of EU law (including equality directives).” As stated previously, I am of the view that as there is no EU Directive covering the supply of goods and services to people with disabilities, I am not applying EU law in this case and, therefore, am not bound by the strictures of the Charter.
Irish Jurisprudence The Complainant also cites jurisprudence of the civil courts and the Labour Court in relation to remedial legislation such as the Act. I note the Complainant’s position that the term “reasonable cause” ought to be construed liberally and, that in this case, circumstances are such that the time limit ought to be extended. I further note the Complainant’s reliance on the dicta established in Karen Duffy v Catherine Kavanagh CK Media Training ADJ-00038002 where the Adjudication Officer noted that reliance on “reasonable cause”, as understood in relation to employment law should not apply to an extension of time under the Act. My view in this regard is that I should rely on the longstanding jurisprudence in respect of the concept of “reasonable cause” provided by the Labour Court as set out in Salesforce.com v Alli Leech EDA1615which is consistently applied by both the WRC and the Labour Court: “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 DWT0338 Cementation 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 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 Costello J. (as he then was) 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 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. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in the passage quoted above, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.” I recognise that complainants who are not represented are at a significant disadvantage. However, I note that, as confirmed by the Complainant’s solicitor at the adjudication hearing, the Complainant sought legal advice in mid-January 2023. Yet her complaint was not received by the WRC until 28 April 2023. No reason for this delay was provided to me at the hearing. It is well settled that delay on the part of a complainant’s legal advisor does not provide reasonable cause for extending the time limit for the referral of a case to the WRC. Taking all of the foregoing into consideration, 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 Act. I am satisfied, therefore, that the notification requirements set out in section 21(6) of the Act have not been met by the Complainant.
Notification of Respondent (ES1) For an Adjudication Officer to have jurisdiction to investigate a complaint under the Act, the Complainant is required to meet both prescribed time limits. I am of the view that, in light of my findings above that the Complainant has not met the requirements of section 21(6), I am not required to consider whether she has met the time limit set out in 21(2) given that the outcome of such consideration would not make any material difference to my findings regarding my jurisdiction.
Conclusion Taking all of the foregoing into consideration, I am satisfied that the notification requirements set out in section 21(6) of the Act have not been met by the Complainant. |
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 limit as set out in section 21(6) of the Equal Status Act 2000, as amended. I decide, therefore, that this complaint is not well founded. |
Dated: 13th March 2024
Workplace Relations Commission Adjudication Officer: Marie Flynn
Key Words:
Equal Status – breach of section 21(6) |
[1] Case C-5/88 Wachauf, EU:C:1989:321
[2] Case C-279/09 DEB, EU:C:2010:811
[3] Case C-206/13 Siragusa, EU:C:2014:126