Complainant

Respondent

Anonymised Parties

A Student (A Minor) 

A School

Representatives

  Self-Represented

Ms Rosemary Mallon BL instructed by Mason Hayes & Curran LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060833-001

04/01/2024

The Complainant alleges that she was discriminated against by the Respondent on the grounds of disability, race, and family status. She also claims that she was not provided with reasonable accommodation for her disability and was harassed, contrary to the provisions of the Equal Status Act 2000 ("the Act").

The Respondent denies that the Complainant was discriminated against, asserting that numerous accommodations were provided, with all supports implemented and recommendations followed. The Respondent states that the suspensions, reduced school days, and eventual expulsion were conducted in accordance with the provisions of the Equal Status Act.

The Respondent also raised a preliminary issue, arguing that the complaint was submitted outside the six-month period allowed for lodging complaints with the Workplace Relations Commission (WRC). Furthermore, the Respondent contends that the reasons given by the Complainant for her application to extend this period by a further six months do not constitute "reasonable cause" as defined under the Act.

The Respondent exhibited an email where the Complainant’s father set out his reasons for seeking an extension of time. The Respondent asserts that the email shows the reason for late submission that he was busy working as well as assisting his daughter with her studies. The Respondent submits  that these are not sufficient reasons for the granting of an extension of time.

The Respondent relies on the Labour Court case of Hewlett-Packard Ireland Limited v. Jakub Zajaczkowski TED 192  and DWT0338 Cementation Skanska (Formerly Kvaerner Cementation) v Carroll.In the latter case the Court stated that:

“ 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 Respondent further cited the High Court in Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30. where 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.”

The Respondent contends there is no explanation as to why the Complainant was unable to find a brief period of time to complete the form in the required period. The explanation given by the Complainant’s father is not reasonable. The Respondent argues that it is inexplicable how the Complainant had time to complete it on January 4, 2024, but not on or before November 22, 2023 – a date that would have ensured the claim was submitted on time. The Respondent argues it is also perplexing that the Complainant did not act sooner, especially given his awareness of the statutory requirement to submit an ES1 form.

The Complainant’s father attested, in sworn evidence, to the email he sent to the WRC, outlining his reasons for believing that they constitute reasonable cause under the Act. Furthermore, the witness gave additional evidence, which he acknowledged was not included in that email. This related to a technical breakdown of his computer, where he asserted that he was unable to submit the complaint form within the designated period. When pressed on this, he could not recall when the issue occurred or the duration of the event. The witness stated that this case involved a fundamental breach of the Complainant’s right to access education, and any technical issue concerning the submission of the complaint should not obstruct the vindication of that right.

Section 21 (6) of the 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.

The Respondent referred to the relevant authorities on this matter, summarised as follows: the superior courts have held that, to establish reasonable cause, a complainant must provide a justification that explains and excuses the delay. This explanation should be rational and sensible, not absurd, and must meet an objective standard based on the facts known to the complainant at the relevant time. A complainant’s delay in filing within the six-month limit must be directly linked to the cause cited, and the relevant forum must be convinced, on the balance of probabilities, that the claim would have been timely without these specific circumstances.

The Complainant accepted that he had submitted an ES1 form within the requisite notification period, as stipulated under section 21 of the Act, and received a completed ES2 form from the Respondent in response. Therefore, I find that the Complainant was fully aware of the time limits under the Act and did not present any evidence of ignorance of these periods. The Complainant stated that he worked full-time and therefore did not have time to submit the complaint form within the six-month period. However, he gave no evidence of working excessive hours beyond the standard 48-hour week. Thus, this cannot be regarded as a reasonable excuse for failing to complete a form, which would take less than 60 minutes.

He further described a situation where he had to assist his daughter with the arrangement of online classes at her secondary school, beginning at the start of the term in 2023. While I do not doubt that the witness needed to address his daughter’s needs in this regard, the Respondent’s representative pointed out that the last acknowledged act of discrimination by the witness occurred on 25 May 2023, allowing the full school summer holiday period for this task.

The witness gave new evidence at the hearing of having experienced a technical difficulty with his computer but provided no further information on when this occurred or how long it lasted. I found this evidence unconvincing, particularly given the witness’s familiarity with computers in the workplace, where their use is critical to his occupation. Furthermore, no mention of this occurrence was made in his written submission to the WRC on 14 January 2024.

In conclusion on the preliminary issue, for the reasons outlined above, I find that the witness provided no reasonable, justifiable excuse for the delay in submitting the complaint, and I therefore conclude that the complaint is out of time, and I do not have jurisdiction to hear the complaint.

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

Equal Status Acts 2000-2015, Out of Time.