ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014771
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 10/09/2018
Workplace Relations Commission Adjudication Officer: Marie Flynn
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.
The Complainant submits that the Respondent discriminated against him on the grounds of his race.
The Respondent rejects the complaint.
Preliminary Issue: Time Limits
Summary of Respondent’s Case:
The Respondent submits that the complaint is out of time given that the incident giving rise to this complaint occurred on 5 September 2017, and the complaint referral form was submitted more than six months later on 20 May 2018.
The Respondent submits that the Complainant’s contention, per his complaint referral form, that the last alleged incident of discrimination by the Respondent occurred on 15 May 2018 is purely a device to bring him within the WRC prescribed time limits and that no incident of discrimination occurred on that date.
Summary of Complainant’s Case:
The Complainant submits that the alleged discrimination occurred on 5 September 2017. He further submits that he sent an ES.1 Form to the Respondent on 2 November 2017 notifying them of his complaint.
The Complaint maintains that he did not receive a response from the Respondent in relation to his complaint.
The Complainant submits that on 15 May 2018 he noticed that the Respondent had not responded to his communication of 2 November 2017. He decided, therefore, to submit a complaint to the WRC under the Equal Status Acts.
Findings and Conclusions:
Before deciding on the substantive issue, I must first decide whether or not the complaint was submitted to the WRC within the required timeframe.
Section 21(6) of the Equal Status Acts, 2000 to 2015 sets out the time limits within which a complaint must be referred to the WRC, namely:
“(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.”
This complaint was received by the WRC on 20 May 2018.
According to the Complainant, the first incident of discrimination occurred on 5 September 2017 and the second incident occurred on 15 May 2018.
I accept that the Complainant availed of the services of the Respondent on 5 September 2017. However, I find that the incident which is alleged to have occurred on 15 May 2018 is simply the realisation by the Complainant that he had not received a response to his ES.1 from the Respondent.
I find, therefore, that the only date on which the Complainant could have been discriminated against by the Respondent is 5 September 2017 and, accordingly, I find that the six month time limit within which the Complainant could submit a complaint to the WRC expired on 4 March 2018. Accordingly, I find that this complaint was submitted outside of the six month time limit.
Section 21(6) of the Equal Status Acts provides that an extension of the time limits to twelve months may be granted where ‘reasonable cause’ can be shown which would both explain and excuse the delay in submitting the complaint, namely:
“ (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.”
In essence, the general principle which applies is that something must be advanced by the Complainant which will both explain and excuse the delay.
The Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows;
“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 asserts that he had been ill and, as a result of his illness, he had not noticed until 15 May 21018 that he had not received a response from the Respondent to his ES.1 Form of 2 November 2017.
The Complainant undertook to submit medical certificates in support of this assertion by 5.30 pm on Monday 17 September 2018 (one week after the hearing). No such evidence has been furnished by the agreed date. In fact, no such evidence has been furnished two weeks after the hearing.
In considering the Complainant’s assertion that he was unable to file his complaint within the six months’ time limit due to the fact that he was unwell, I note that this Complainant has submitted numerous complaints to the WRC under the Equal Status Acts. The decisions in respect of these complaints are published by the WRC on its website and the details of same indicate that the Complainant submitted at least one of these complaints and attended a WRC adjudication hearing in respect of another complaint during the time period under consideration here i.e. from 5 September 2017 to 4 March 2018.
I find, therefore, that although the Complainant maintains that due to illness he was unable to submit this complaint within the prescribed time limit, he was able to submit at least one complaint and attend at least one adjudication hearing within the relevant period.
In order to grant an extension of the time period from 6 months to 12 months, I must be satisfied that the reason advanced by the Complainant for the delay both explains and excuses the delay. Having regard to the totality of the evidence adduced in relation to this matter, I am satisfied that the complainant has failed to provide me with an explanation which both explains and excuses the delay in submitting the complaint. I find, therefore, that his application for an extension of time fails.
This complaint was submitted outside of the time limits set out in Section 21 of the Equal Status Acts and accordingly, I find that I have no jurisdiction to investigate the complaint.
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.
In accordance with Section 21 of the Equal Status Acts 2000-2015, I find that this complaint is out of time and, therefore, I have no jurisdiction to investigate this complaint.
Workplace Relations Commission Adjudication Officer: Marie Flynn