ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026241
Parties:
| Complainant | Respondent |
Anonymised Parties | A Customer | Restaurant and Bar Complex. |
Representatives | Vincent Toher & Co | O'Flynn Exhams Solicitors OFX |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00032473-001 | 26/11/2019 |
Date of Adjudication Hearing: 28/09/2020
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Procedure:
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 requested that the decision would be anonymised because the event alluded to below was about the celebration of the birth of a child. She did not want any potential negative associations for the child. The Respondent also requested that the decision would be anonymised. I have therefore decided to anonymise the parties in this decision.
Background:
The Complainant submits that she booked an event with the Respondent, and prepared the allocated space, with the Respondent’s assistance, in the bar/restaurant for the event on the date in question. This consisted of decorating the area with balloons and preparing food, etc. When she turned up a short time later with guests she was advised that the event was cancelled 20 minutes previously. She completely denies that she, or anyone else of her party, cancelled the event. She submits that the event was cancelled by the Respondent due to the Complainant and her family being members of the Travelling Community. She is seeking redress for the hurt and humiliation caused by the alleged prohibited behaviour under the Equal Status Acts. The Respondent completely denies discrimination of any sort against the Complainant and asserts that the event in question was legitimately cancelled beforehand. Preliminary Jurisdictional Issue. Summary of Respondent’s Application:
The Respondent makes a preliminary application that the Adjudicator does not have jurisdiction to hear this case for the following reasons:
1. The Respondent, as named in Form ES.1 and the Complaint form, is not a legal entity: The Respondent states that it first received notification of this complaint from the Complainant’s Solicitors in late August 2019. At this time, it received a letter dated 20th August 2019 enclosing form ES1. Both the letter and form ES.1 were addressed to the bar/restaurant which is not a legal entity. The Respondent relies upon A Complainant v. A Public House (Ref: ADJ-00001493) (27/02/2017) on this point. where the Adjudicator stated amongst other things: “The complainant was legally represented at the time the ES.1 form was completed and furnished to the respondent. It was open to the complainant’s Solicitor to carry out either a CRO search or a search of the register of licenses 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 which these or other proceedings could be brought. Accordingly, I find that the complainant’s claim against the respondent, ‘The X’ fails.” The Respondent, in this case, submits that the Complainant had the benefit of legal advice and representation at all material times in this claim. It further submits that the Complainant’s solicitor could and should have carried out a CRO search and/or a licensing search to establish the correct legal title. The Respondent submits that the complaint form, as submitted by the Complainant, to the WRC on 26th November 2019 states that ‘X’ is a Limited Company. The Respondent submits that this is factually incorrect. 2. Form ES.1 was not submitted within the Statutory time period.
The Respondent relies upon Section 21(2) of the Act which states: (2) Before seeking redress under this section the complainant— (a) shall, within 2 months after the prohibited conduct 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. The Respondent asserts that Section 21(3) of the Act allows the Director of the WRC to direct that the 2-month period as referred to in Section 21(2) to be extended to a period not exceeding 4 months if the Director is satisfied: a) That exceptional circumstances presented in the complainant form notifying the respondent in accordance with section (2); and b) That it is just and equitable, having regard to the nature of the alleged conduct and to any other relevant circumstances, that the period for doing so should be extended beyond the period of 2 months as provided for in that subsection.
The Respondent submits that there is no provision for extending this statutory period for a period exceeding 4 months. The Respondent submits it is accepted by the Complainant’s solicitor in a letter that the alleged incident took place on 14th April 2019 and that, the Complainant’s solicitor states: “the ES1 notification form to the Respondent issued on the 20th August 2019, which was unfortunately 1 week outside the 4-month period, but within 18 weeks of the date of the incident….”. The Respondent submits firstly, the Complainant accepts that the ES1 form was not submitted within the two-month statutory period per Section 21(2) of the Act and secondly, the form was not submitted within the four-month period per Section 21(3) of the Act. No extension had been sought from the Director of the WRC. The Respondent relies on, inter alia, the following cases where it submits that the Adjudication officer refused jurisdiction on a similar point: Geraldine Broderick v. Kerry Deaf Recourse Centre ADJ-00015187 and A Complainant v. A Public House ADJ-00001493 The Respondent submits that the Complainant was legally represented at all material times and therefore, would have known of the strict statutory time limits in relation to the submission of form ES.1. 3. Contents of letters purportedly sent by the Complainant’s Solicitor are not compliant with statutory requirements.
The Respondent denies receiving the letters purportedly sent by the Complainant’s Solicitors dated 7th May 2019 and 30th May 2019. The Respondent submits that the purported letters dated 7th May 2019 and 30th May 2019 do not, in any event, satisfy section 21(2) for the following reasons:
- The purported letter dated 7th May 2019 alleged discrimination on the part of the Respondent. However, this letter did not state the ground upon which it is alleged that the Complainant was the subject of discrimination
- The letters also make no reference to the complainant’s intention, if not satisfied with the response received to the allegation, to seek redress by referring the case to the WRC under the Act.
The Respondent submits that the letter dated 7th May 2019 states, inter alia, that: “We call on you to formally apologise to our client for this discrimination and / or defamation and to make proposals in relation to this apology……”. No reference is made in either letter to the Complainant seeking redress under the Equal Status Acts
The Respondent relies on, inter alia, the following cases on this point. - Ellen Clearly (next friend Kathleen Clearly) v. Dott Treasea Holding Limited The Rose Hotel ADJ-00018262 and Customer 1 v. Gym (Ref: ADJ-00024885) (08/10/2019) The Respondent submits that the Adjudication Officer has no jurisdiction in this case to investigate or determine a decision as the notification requirements set out in Section 21 (2) of the Act were not fully complied with.
4.The Complaint Form was not submitted to the WRC within the Statutory time period. The Respondent relies upon section 21 (6) of the Act which provides as follows:
(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. The Respondent submits that the alleged incident, the subject of this claim took place on 14th April 2019. Therefore, the application form to the WRC should have been submitted before 19th October 2019. The Complainant’s application form to WRC was submitted on 26th November 2019 – well over 7 months post the date of the alleged ‘prohibited conduct’. The Respondent submits that there are no exceptional circumstances in this matter to extend the period of 6 months to 12 months. The Respondent argues that it appears to be the Complainant’s case that she first sought legal advice in May 2019, i.e. within 1 months of the alleged ‘prohibited conduct’.
The Respondent relies on A Minor v. A Creche / Pre-School Facility ADJ-00016405) where the Adjudication Officer held that the claim was out of time and must be deemed to be not well founded.
The Respondent requests that the above preliminary submissions be considered both individually and collectively.
Preliminary Jurisdictional Issue. Summary of Complainant’s Response:1. The Respondent, as named in Form ES.1 and the Complaint form, is not a legal entity. The Complainant refutes the Respondent’s submission that this has caused any prejudice to the Respondent, in all the circumstances, by not citing the correct company name as, had this limited company been cited heretofore, the chronology and progression of this case would have occurred in an identical manner. The Respondent’s solicitors continued to look after the interests of the Respondent as cited on the said ES1 form. The Complainant submits that in circumstances where the ES1 citing the name of the public house, and not the limited company, had already been submitted, the proper course of action would be for the Adjudicator to formally amend the title of the Respondent in his decision, if necessary, for the purposes of the enforcement of any order that may be made.
2. Form ES.1 was not submitted within the Statutory time period. The Complainant contends that the letter of the 7th May which the Complainant’s solicitor sent to the Respondent advising that instructions had been received in relation to an incident which had taken place at the Respondent’s premises on the 14th April 2019. It was advised in this letter that the Complainant had been discriminated against and/or defamed and sought an apology and the Respondent’s proposals in relation to compensation. A further letter was sent to the Respondent on 30th May 2019 attaching a copy of the first letter sent, seeking that a response would be sent by return. The Complainant submits that the letters constituted an ES.1 notification within the statutory time period.
3. Contents of letters purported sent by the Complainant’s solicitor are not compliant with statutory requirements. The Complainant refutes this suggestion and refers again to the argument at two above that the allegation of discrimination made, and the seeking of recompense fulfils the notification requirement at section 21 of the Act.
4. The Complaint Form was not submitted to the WRC within the Statutory time period: The Complainant did not submit an argument for any reasonable cause, or otherwise, as to why the complaint was referred to the WRC outside the 6 months’ time limit from the date of the occurrence of the prohibited conduct, as stipulated at section 21(6) of the Act. |
Summary of Complainant ’s Case. Substantive Issue:
The Complainant submits the following on the substantive issue:
The incident occurred on the 14th April 2019 at the Respondent’s premises. The Complainant had booked a ‘baby shower’ approximately two weeks prior to that date. She attended on the evening of the 14th, before the celebration, to put up balloons etc. with the assistance of an employee of the Respondent. Sometime later, at approximately 8pm, when the Complainant returned to the premises to celebrate the event, the Complainant and her sister were refused entry and were told that the said celebration had been cancelled by a person in a phone call.
The Complainant vehemently denies that the Respondent received a phone call from an individual who stated that she was telephoning on behalf of the Complainant wishing to cancel the function.
The Complainant submits that discrimination occurred within the meaning of Section3(2)(i) of the Equal Status Act,2000, as amended, by reason of the fact that the Complainant is a member of the Traveller Community and the Complainant seeks appropriate redress. |
Summary of Respondent’s Case. Substantive Issue:
The Respondent accepts that the Complainant telephoned the Respondent on 9th April 2019 to book a ‘baby shower’ for 20 persons with food. This booking was confirmed by way of a telephone call which took place on Friday, 12th April 2019 i.e. two days before the proposed function was to take place.
On the morning of the proposed function the Respondent received a telephone call from an individual who stated that she was telephoning on behalf of the Complainant. She confirmed that the Complainant wished to cancel the function, as the baby had been born the previous evening.
On the evening of 14th April 2019, persons attended at the Respondent’s premises (without prior notice) with decorations and stated that they had booked a function. It should be noted that these decorations were for a birthday party and not for a baby shower. Those who attended at the premises were met by the Respondent’s staff, who were most surprised to see them, given the earlier cancellation of the function. It is accepted that the Respondent’s staff did show those persons to a table. The Respondent’s staff then contacted their Manager, who was not working that evening, by telephone, to seek guidance as to what they should do in circumstances where people had attended the premises for a function which had already been cancelled. In the circumstances cited where a) the event had already been cancelled that morning; b) as a result, no food had been cooked / prepared and c) there was a weather warning for a storm that evening and it was proposed to close the premises early – it was conveyed to those in attendance that the function had already been cancelled and that they could not be accommodated in the circumstances.
The Respondent denies that the Complainant was treated less favourably due to her being a member of the Traveller Community. The Respondent states that it had no knowledge that the Complainant was a member of the Traveller Community. |
Findings and Conclusions: Preliminary Jurisdictional Issue
Incorrectly Named Respondent: The High Court case of Capital Food Emporium (Holdings) Limited v Walsh & Others (2016) IEHC 725 dealt with an appeal for the quashing of an enforcement order from the Employment Appeals Tribunal. Barrett J. noted, amongst other things, that the applicant employer in this case had accepted on multiple occasions, in correspondence, that it was the correct respondent and could not now resile from that position. The Respondent in the instant case has engaged in correspondence prior to the hearing and properly identified itself as the correct Respondent at the hearing. The Respondent has acquiesced from an early stage in these proceedings as the correctly named Respondent therefore I find that there is no prejudice to the Respondent in correcting the Respondent’s name to give accuracy to the proceedings. Notification Requirement under section 21 of the Act including the application of the Respondent Contents that letters purportedly sent by the Complainant’s solicitor are not compliant with statutory requirements. The notification requirements under the Act are provided at Section 21(2) which states: (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
Section 21(3) of the Act allows the Director of the WRC to direct that the 2-month period as referred to in Section 21(2) to be extended to a period not exceeding 4 months if the Director is satisfied: a) That exceptional circumstances presented the complainant form notifying the respondent in accordance with section (2); and b) That it is just and equitable, having regard to the nature of the alleged conduct and to any other relevant circumstances, that the period for doing so should be extended beyond the period of 2 months as provided for in that subsection. The Complainant relies upon the letter of 7th May 2019 and a follow up letter of the 30th May 2019 to the Respondent as fulfilling the requirement of notification under the Act. There is a clear conflict of evidence on the posting and receipt of these letters. The Respondent denies ever having received the letters, but the Complainant is adamant that such letters were sent. Notwithstanding this conflict, copies of the letters in question were exhibited at the hearing. I cannot accept the Complainant’s solicitor’s position that the content of the letters fulfils the requirements of the Act. Firstly, other than a reference to discrimination there is no detail as to the nature of the discrimination, as required under s.21(a)(i) i.e. that the Complainant was a member of the Travelling Community; nor is there any specific reference to specifically seek redress under the Act if the Complainant is not happy with the Respondent’s response as is required under s.21(1)(a)(ii). The Complainant later sent a formal ES.1 form to the Respondent on the 20th August 2019 but this was outside the extended 4-month notification period after the date the alleged prohibited conduct has occurred. As the notification requirements set out in Section 21(2) of the Equal Status Act, as amended, were not fully complied with, I find that I have no jurisdiction to investigate or determine a decision in this case. Assertion that the Complaint Form was not submitted to the WRC within the Statutory time period. Section 21 (6) of the Act which provides as follows:
(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. The Complaint to the Workplace Relations Commission was received on the 26th November 2019 which was over 7 months from the date of the alleged prohibited conduct. This fact was not disputed by the respondent nor was an extension sought based on reasonable cause for late submission for a period of 12 months under section 21(6)(b) of the Act. As the Complaint was not submitted to the Workplace Relations Commission within 6 months of the occurrence of the alleged prohibited conduct, as required under section 21(6)(a) of the Equal Status Act, 2000, as amended. I deem the Complaint to be out of time and I therefore find that I have no jurisdiction to investigate or determine a decision in this case. |
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.
As the notification requirements set out in section 21(2) of the Equal Status Act 2000, as amended, were not fully complied with and, furthermore, as the complaint was not submitted within the time limit as stipulated under section 21(6) of the aforementioned Act, and therefore out of time, I find that I have no jurisdiction to investigate or determine a decision in this case. |
Dated: 11th August 2021
Workplace Relations Commission Adjudication Officer: Thomas O'Driscoll
Key Words:
Equal Status Act 2000, Membership of the Traveller Community, Time Limits, Notification Requirement, No Jurisdiction. |