ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001493
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000
Date of Adjudication Hearing: 20/06/2016
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and 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.
The respondent made two preliminary applications as follows:
The incorrect respondent has been named on the Workplace Relations Complaint form.
The complainant’s claim is statute barred pursuant to section 21 (2) of the Equal Status Act, 2000.
The complainant named ‘The X’ as the respondent to the within claim. No such legal entity exists. Neither the respondent limited company nor the licensed premises relevant to this claim are entitled ‘The X’. The public house is entitled “ The X Inn” and it is owned and operated by a limited company. The respondent refused to consent to amend the name of the respondent to the limited company. The complainant was legally represented at the time the claim was prepared and lodged.
The complainant failed in her obligations pursuant to Section 21(2) of the Act to notify the respondent in writing within two months from the date of the prohibited conduct, of the nature of the allegations and of her intentions should a satisfactory response not be forthcoming.
The alleged prohibited act occurred on the 27th July, 2015. Notice pursuant to Section 21 (2) was furnished to the within named respondent on the 24th November, 2015. No reasons have been forthcoming that would, in law, allow the adjudicator to extend the time pursuant to Section 21 (3) for a further two months.
The Complainant’s submissions.
The pub the subject matter of the within claim is known to locals as ‘The X’. The respondent, when it received the ES.1 form should have notified the complainant’s solicitor that an error had been made on the form. They failed to do so.
It is accepted that the complainant’s solicitor didn’t notified the within named respondent until the 23rd November, 2015. However, the complainant stated that she did write to the respondent on the 19th August, 2015 in relation to the matter. She also hand delivered a letter to the respondent’s premises on the 14th October, 2015. The letter of the 19th August and the letter of the 14th October, should serve a notice pursuant to Section 21 (2).
The complainant stated that they were making inquires from An Garda Síochána in relation to their alleged role into the cancelling of the venue. The respondent informed the complainant’s husband, that the gardaí had informed him that he was not permitted to hold weddings in his function room. Those enquires took longer than expected and that was the reason for the delay.
Section 41(4) of the Workplace Relations Act 2015 and Section 25 of the Equal Status Act, 2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 25 of the Equal Status Act, 2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
The complainant was legally represented at the time the ES.1 form was completed and furnished on the respondent. It was open to the complainant’s solicitor to carry out either a CRO search or a search of the register of licences to establish the correct legal title of the respondent. He did neither. In the absence of consent from the respondent to amend the name of the respondent I have no jurisdiction to do so. I find that ‘The X’ is not a legal entity against which these or any other proceedings could be brought. According, I find that the complainant’s claim against the named respondent, ‘The X’ fails.
The ES.1 notification was furnished on the 23rd November, 2015 arising out of the alleged prohibited conduct which occurred on the 27th July, 2015. The letters the complainant stated she furnished to the named respondent dated the 19th August, 2015 and the 14th October, 2015 were not produced. The content of those letters was not disclosed during the hearing of the preliminary matter. The respondent denied ever having received the letters. I must therefore find that the first notification was the 23rd November, 2015.
The reason for the delay was stated to be due to inquires being made from An Garda Síochána into the veracity of the respondent’s statement that the Gardaí wouldn’t allow him hold weddings in his function room. There is no reason why the complainant could not have served the ES.1 form whilst those inquires were ongoing. The result of those inquires only go to the strength of the evidence and nothing else. No circumstances, exceptional or otherwise, existed at the material time that would have prevented the complainant from serving the ES1 form with the statutory time period set out in Section 21(2).
Accordingly I find that I do not have jurisdiction to extend the time period pursuant to Section 21 (3) of the Act.
Dated: 27th February 2017