Case Number: ADJ-00021365. Workplace Relations Commission.

• Court: Workplace Relations Commission
• Docket Number: ADJ-00021365
• Hearing Date: 20 August 2019
• Date: 01 October 2019
• Year: 2019
• Parties: Adeeb Ur Rehman v Road Safety Authority

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.

Background:

The Complainant was, at the relevant time, an asylum seeker. He submitted his complaint to the WRC on 29th April 2019 claiming that he was discriminated against by the Respondent on the grounds of race. The Respondent denies the claim. At the WRC hearing the Complainant made an application to anonymise this decision. Having considered the Complainant’s request I am not satisfied that the Complainant put forward compelling reasons to exercise my discretion to anonymise this decision. Specific complaint CA-00028026 which was a duplication of CA-00028025 has been amalgamated with CA-00028025.

Preliminary matter – time limits Summary of Respondent’s Case:

The Respondent raised a preliminary matter of time limit. The Respondent submits that it received and processed an application for a learner driver permit from the Complainant on 6th March 2018. While this application did not include satisfactory evidence of normal residence, the Respondent, in error, processed this application and issued the Complainant with a learner permit on 9 March 2018. The Respondent later received an application for a driving licence from the Complainant on 20th September 2018. The Complainant’s application was rejected on the basis that, in accordance with the requirements of the Guidance Notes and the Regulations, the application failed to include satisfactory evidence of the Complainant’s normal residence in the State. The Respondent has corresponded with the Complainant and his representatives on various dates since September 2018 to clarify its requirements regarding evidence of normal residence and to apologise for its error in accepting his previous application for a learner driver permit. During the course of correspondence with the Complainant’s solicitor on 1st February 2019, it was indicated by Mr COF of the Respondent that “At the time of your clients first learner permit application in March of 2018, evidence of residency was not required.” This is inaccurate, insofar as the Respondent has adopted the same position in relation to the documentary requirements regarding normal residence since 2013 when it assumed its driving licencing function. The Respondent on various dates indicated to the Complainant and his representatives that the requirements for evidence of normal residence are currently under review by the Department for Transport, Tourism and Sport and are the subject of proceedings before both the High Court and the WRC. The Respondent also stated to the Complainant that it would refund his application fee in the event that he was unable to provide the documentation sought Following the rejection of the Complainant’s application, the Complainant later was granted a full licence, having furnished the Respondent with satisfactory evidence of his residency entitlement. The Complainant is, therefore, currently a licenced driver in the State. FORMS ES.1 AND ES.2 After considerable time had elapsed following the rejection of the Complainant’s application, the Respondent received a Form ES.1 from the Complainant on 9th April 2019. The Complainant states that the refusal to accept his proffered evidence of residency amounts to discrimination on the grounds of race. He states that the refusal affects his ability to earn a living as well as the cost of insurance and that he invested time, money and effort in seeking to obtain a driving licence following the granting to him, in error, of a learner permit by the Respondent. The Respondent prepared a reply in the Form ES.2 dated 7th May 2019. The Respondent in its response stated that its requirement to show evidence of residency entitlement is not discriminatory on the grounds of race and must be satisfied by all applicants for driving permits, irrespective of race. The Respondent argues that the Complainant had failed to notify the Respondent in writing of the nature of his allegation within two months after the prohibited conduct is alleged to have occurred, as is required by section 21(2)(a) of the Equal Status Acts. 13. Section 21(2) of the Equal Status Acts provides as follows: (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 Commissionor, 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. This is, therefore, a precondition to seeking redress under the Equal Status Acts and as such, the failure of the Complainant to make the necessary notification is such as to disentitle him to the relief sought as a preliminary matter. While section 21(3)(a)(i) of the Equal Status Acts allows the WRC to substitute a period of 4 months for the period of 2 months provided for, this can only be done “for reasonable cause”. It is not credible that the Complainant could have reasonable cause to have prevaricated in lodging the ES.1 form in circumstances where he was engaging in correspondence with the Respondent at all material times regarding the precise matters which are the subject of the within Complaint. Even if such reasonable cause were to be established, the Complainant failed to furnish the ES.1 form to the Respondent even within the extended four-month period. In a letter to the WRC dated 16th May 2019, the Complainant’s representative states that the most recent date of discrimination given on the Form ES.1 is “an error” and that the date from which the limitation period runs is 4th March 2019, being the date the Respondent last affirmed its position regarding the documentary requirements for evidence of normal residence to the Complainant in writing. There can, however, be no question of a continuing act of discrimination in this case and the last act of alleged discrimination in this case occurred when the Complainant’s application for a driving licence was denied, that is, well outside of the statutory time period. As the Labour Court stated in Brothers of Charity Services Galway –v- Kieran O’Toole(EDA177), there must be “some reality” to the claim that acts of discrimination actually occurred within the limitation period, otherwise a complainant “could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit”. The attempt by the Complainant to rely upon statements by the Respondent’s agents in correspondence is an attempt to bring his Complaint within the statutory period where it is clearly not so and should not be permitted. The Respondent argues that the email of 31st October 2018 captures the rationale behind the decision to decline the permit and the Complainant was at that stage both fixed with knowledge and legally represented. The Respondent argues that it is not a matter of repeated behaviour. Rather, it is a matter of implementation of clear guidelines which was clearly communicated to the Complainant on 20th September 2018 and, in an email on 31st October 2018. If there is no reasonable cause for the Complainant to have failed to furnish the ES.1 to the Respondent within the statutorily mandated timeframe, there are ...