Complainant

Respondent

Anonymised Parties

A Customer

Supermarket

Representatives

  Self-Represented

Mr Patrick Silke BL instructed by Maurice Hallissey , James V. Walsh and Son, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047873-001

23/12/2021

The Complainant alleges that he was discriminated against when he was not allowed service at the Respondent supermarket on 30 April 2021 during the Covid-19 pandemic This  was a result of his inability to wear a face covering due to his autism. The complaint was recorded as  received by the Workplace Relations Commission (WRC)  on 23 December 2021. It is common case that this was outside the six months period for submission of complaint. The Complainant is claiming that there is a reasonable cause for the extension of the submission period to 12 months.

The Complainant gave evidence under oath. He stated that his father had been ill for over a year in hospital with dementia and died on 14 December 2021. The effects of this over the period were such that he was unable to submit the complaint in time.

During cross-examination, the Complainant accepted that he had filled out a detailed ES1 shortly after the material incident and sent it to the Respondent. The Complainant also acknowledged that he had submitted claims on time to the WRC during the Covid-19 period. The Complainant took issue with the reference to a previous anonymised case during questioning by the Respondent’s counsel. (I intervened as adjudicator and did not allow cross-examination on the circumstances of this case. However, the case  had been referred to by name by the Complainant in correspondence to the WRC, and this, in turn, was copied to the Respondent, as is the practice.)

It is the Respondent's case that, while acknowledging the death of the Complainant’s father was a very sad occasion for the Complainant, the father had been in hospital for over a year prior to his death. During this time, the Complainant was able to process a detailed ES1 form within the six-month period and received a reply. Furthermore, the Complainant would likely have processed similar cases against other respondents during that period. The Respondent submits that the Complainant has not demonstrated reasonable cause for an extension of the complaint submission period.

Section 21 (6) of the Equal Status Act deals with the time limit for submission of complaint where it states:-

 (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, as the case may be, the date of its most recent occurrence.

 (b) On application by a complainant the Director of the Workplace Relations Commission, 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 accordance with the legislation an Adjudication Officer may not entertain a compliant such as this if the claim is lodged after the 6 months from the date of the last occurrence. According to the Complainant form the  date of discrimination was 30 April 2021.  The claim was received by the WRC on 23 December 2021 which is outside the 6-month time period. The time period can be extended up to a maximum of 12 months from the date of the most recent alleged act. However, the test in relation to same is “reasonable cause” . This was referred to in the seminal case of DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll where the Labour Court stated:

“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.”

The Complainant provided no satisfactory explanation for his inability to find a short period of time to complete the form within the required time frame. His explanation was unreasonable. While I completely sympathise with the Complainant regarding the circumstances surrounding his father's passing, his father had been in hospital under full medical care for over twelve months prior to his death. The Complainant acknowledged that he was fully aware of the time limits in such cases, and I am satisfied that he was also fully aware when he submitted a detailed ES1 form to the Respondent, which was recorded as received on 5 May 2021. This form would have been drafted while his father was still in hospital. Having considered the above, I find that the witness provided no reasonable or justifiable excuse for the delay in submitting the complaint. I therefore conclude that the complaint is out of time, and I do not have jurisdiction to hear the case.

For the reasons outlined above I find that the Complainant did not submit the complaint within the designated six-month period as designated under section 21(6) of the Act and, furthermore, he did not present a reasonable cause for an extension of the time period to twelve months. Therefore, I decide I do not have jurisdiction to hear the complaint.

Equal Status Acts 2000-2015, Out of Time.