ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00051553

Parties:

Complaint(s):

Date of Adjudication Hearing:  16/01/2025

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Procedure:

In accordance with Section 25 of the Equal Status Act, 2000, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

PRELIMINARY MATTER:

Discretion to Extend Time by a further 2 Months:

The Act provides for an extension of time.

Section 21(3) states:

3) (a) On application by a complainant the Director of the Workplace Relations Commissionor, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(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, and, where such a direction is given, this Part shall have effect accordingly.

Delay:

In a letter dated the 30th of April 2024 the Complainant Solicitor wrote to the Workplace Relations Commission and stated that the Complainant was in contact with their office on the 12th of January 2024 and instructed them to seek an opinion from a Barrister about the merits of the case. That advice was received on the 1st of March 2024 and the College was subsequently informed of the alleged discrimination and that unless the matters were addressed a referral would be made to the Workplace Relations Commission. A key issue in this case is delay and a failure to notify the Respondent within the statutory 2-month window. While the Act does allow time to be extended by 2 months or waived for exceptional reasons, a hurdle in this case is the fact that the Complainant had the benefit of legal assistance from the 12th of January 2024. The last incident of alleged prohibited conduct was the 24th of November 2033, and this means the initial period to raise a complaint using an ES 1 form or other written form to the College alleging discrimination was up to the 23rd of January 2024.  However, that required statutory notice was not sent until early to mid-March 2024 as the parties are in dispute about the dates of receipt.

The Respondent relies upon Skanska and the Labour Court’s decision is consistent with Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote:

In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" 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 that 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 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. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."

The Respondent has made out a detailed case why this tribunal does not have jurisdiction to hear the complaints before it pursuant to section 21.

The first hurdle relates to the failure to provide 2 months’ notice to the Respondent relating to the alleged incidents of prohibited conduct pursuant to section 21 of the Equal Status Act 2000 as amended, for any of the complaints referred to the Commission and why the Complainant has failed to notify the Respondent on time when she had retained the services of a legal representative in early January 2024. The statute provides for a short notice period of 2 months. A reasonable cause must explain why a complaint form was not sent on time to the Respondent. That cause must explain the delay. A delay in receiving advice from a Barrister does not meet the test of a reasonable cause.

The Complainant it is argued by the Respondent has not made out a case of reasonable cause to explain the delay to notify the Respondent on time pursuant to section 21 (2). In other words, a reason that is credible and that caused the notice to be sent outside of the time limit.

Ongoing and Continuing Discrimination:

It is possible to make out a case of ongoing discrimination that arguably brings all the incidents into a line of connected wrongs.  Section 21(11) states:

(11) For the purposes of this section prohibited conduct occurs-

(a) if the act constituting it extends over a period, at the end of period

(b) if it arises by virtue of a provision which operates over a period, throughout the period.

However, that would only be relevant if the date of the last alleged prohibited conduct was in time, and that is not the case here. For a case of ongoing discrimination to be made there must be a close connection between the prohibited acts being joined. It is not at face value that clear how an investigation and the omission to find a new suitable research supervisor are similar acts of prohibited conduct. It that is so, then the time to extend for the alleged conduct complained about dated the 7th of November 2023 would be out of time on the 6th of January 2024. The notice to the Employer is disputed to have been received in early March 2024 and in fact the College stated only received in mid-March.

The alleged incidents of prohibited conduct are not one act or could be argued to be similar and on the fact of the description of each wrong constitute 2 separate complaints. While the acts are described as discriminatory that does not meet the requirement that the matters complained of are one act or closely connected to be seen as a continuing act. Even allowing for the possibility of ongoing discrimination, the last incident of alleged prohibited conduct referred to the Commission, is the 24th of November 2023, and the ES 1 form is dated the 6th of March 2024 which means the earlier complaint is out of time pursuant to section 21(2) by a wide margin relative to the statutory requirements.

Allowing for the fact that relevant case law relating to equality matters have been made by employment tribunals, decisions determined by the Labour Court are cited in Equal Status cases. The Labour Court in Hurley v County Cork VEC (EDA1124) said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. The case of the Department of Justice Equality and Law Reform v A Worker(EDA1422), which involved a complaint of alleged discrimination by a prospective employer and the Labour Court determined that the complainant had failed to prove a continuum of discrimination between historic alleged instances of discrimination outside of the six month referral period, and the alleged acts that the Court considered "in time" stating that the complainant failed to "establish a sufficient connection between the competitions such that would support her contention that they should be viewed as anything other than a series of independent unconnected competitions".

In this case it would be a stretch to see an alleged flawed investigation completed by an entirely different actor to the one that wrote to the Complainant about the reasons why a new supervisor could not be assigned are linked and constitute continuing discrimination. This does not mean that the alleged acts have been determined not be discriminatory. They are not sufficiently connected in their character to constitute a continuum. 

Set Aside:

The obligation to notify the respondent can be set aside pursuant to section 21 (3) where the tribunal is satisfied that:

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, and, where such a direction is given, this Part shall have effect accordingly.

In law exceptionally is a very high threshold to reach. I am not satisfied in the circumstances of this case that statutory time limits should be set aside. After the 7th of November 2023 when the investigation outcome was sent to the Complainant, she engaged with the Dean of Post-Graduate Studies about a new supervisor and sought the assistance of a Solicitor in early January 2024 about her case. The requirement to notify the Respondent is not onerous and requires enough detail to know what the complaints are about with the right to amend and elaborate further. The obligation is not to dissimilar to setting out a statement of claim with sufficient particularity to know what it is about. That is not a very high bar. What is required under the Act is sufficient detail in a notice to be sent to the Respondent within 2 months of the prohibited conduct and that did not occur in this case.

The Act at section 21 details what should be in the notice:

(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.

(2A) 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.

On the facts where the Complainant was corresponding with the Dean of Studies about the outcome of the Report and her subsequent request to change supervisor:

On Wed, 8 Nov 2023 at 11:11, > wrote:

Hi Helen,

As you may have seen the formal investigations into my complaints has

concluded.

This was, in my understanding the reason I was unable to return to my studies.

I need to return to my research but I have some requirements to discuss before I

feel safe to return.

I will not back under the supervision of redacted neither deal with bullying

again and harassment.

I need a new supervisor. Please, put in contact with the head of the department.

Regards

The requirements under the Act are not onerous about placing the Respondent on notice. The ability to write to the Dean about the outcome of the investigation report and a request for anew supervisor is evidence that the Complainant was able to meet the basic requirement of also detailing the nature of a complaint to the Respondent in a statutory notice.

However, in addition the Complainant had the benefit of legal advice in early January 2024 as set out in correspondence to the Workplace Relations Commission:

Section 25(6) refers to the Commission and the 6 months’ timeframe:

(6) (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 or, 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

Email to sumbissions…                                                   12th April 2024

Dear Colleagues,

We act for the above mentioned client and we attach a letter of authority to demonstrate same. Ms Kao sought legal advice from our offices on the 12th of January and instructed us to seek the counsel of a barrister regarding her matter. Following counsel advice, we had until the 6th of March to make a complaint under the Equal Status Act.  We submitted the complaint to redacted College on the 6th of March using the ES 1 Form Notification and have spoken on numerous occasions with your offices as we had great difficulties using the new WRC e-Complaint Form…We have been advised by your office that ordinarily we would have until the 24th of March to submit this complaint, which would be within a four month period. However, we had to give Trinity time to respond using the ES2 Form as per correspondence dated March 2024.

The Act sets down notice periods for the Respondent and then a separate statutory notice period to file with Commission within 6 months of the alleged prohibited conduct that maybe extended to 12 months. As previously stated, the notice requirement to the College of alleged prohibited conduct is 2 months and that on application to the Commission for reasonable cause extended to 4 months and in exceptional circumstances not applied. However, the 6 month and 12-month window would obviously apply.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court] may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(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,

and, where such a direction is given, this Part shall have effect accordingly.

The Correspondence clearly shows an appreciation of the importance of notice periods and some explanation to explain why time limits have not been met. It also shows that the Complainant had the benefit of legal assistance in or about early January 2024.

The Investigation report was concluded and sent to the Complainant on or about the 7th of November 2023. As this is not part of a continuum of discrimination as I have determined that it is a distinct allegation of discrimination time to meet the 2 months’ notice to the College is the 6th of January 2024 and could be extended for reasonable cause to 6th of March 2024.

On the 24th of November 2023 the Dean of Graduate Studies writes to the Complainant and states that is regrettable that the supervision relationship has broken down irrevocably. Also, the College was not able to facilitate her request for another supervisor arising from capacity and expertise limitations. The consequence of not being able to assign a research supervisor would mean that the Complainant would not be able to complete her planned research at the College. This alleged act of discrimination I have determined to be a distinct act and the 2-month time period of notice to the College ran until the 23rd of January 2024 and for reasonable cause up to the 23rd of March 2024.

There is a dispute between the parties about when the actual statutory form was received. To the benefit of the Complainant at its height the form was sent on the 6th of March 2024, and this would mean the 2-month period had elapsed to file. This brings the examination of what is offered as a reasonable cause. That test is well defined, and the Complainant must show that the explanation not just provides a context for the delay but must also be a cause of the delay. The requirement to notify the Respondent of the nature of the allegation is not onerous and further elaboration later can be provided. What is required to stop time running is (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. While an Adjudicator can understand why a delay has occurred on the facts before me the test to provide a reasonable cause so that time can be extended has not been met. As the threshold to show reasonable cause has not been met, I find that I have no jurisdiction to hear the complaints.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

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.

Section 22 of the Act provides that:

22.—(1) The Director of the Workplace Relations Commission] may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) Not later than 42 days after the Director of the Workplace Relations Commission] dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

Dated:  28th of January 2025

Workplace Relations Commission Adjudication Officer:  Brian Dalton

Key Words: