Complainant

Respondent

Anonymised Parties

Applicant

Government Department

Representatives

Self-Represented

Chief State Solicitor's Office

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00055867-001

29/03/2023

On 29th March 2023, a document entitled form ES1 was received by the Commission. This form alleged that the Respondent discriminated, harassed, victimized and failed to make a reasonable accommodation for the Complainant on the grounds of disability, gender, membership of the traveling community and sexual orientation. By subsequent correspondence, the Complainant submitted that the referral of this document constituted the referral of a complaint under the Act and the matter duly proceeded to hearing.

Said hearing was convened for and finalised on 29th August 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

In circumstances whereby the Complainant disclosed a disability in the course of the proceedings, I have exercised my jurisdiction to anonymise the decision in its published form.

By submission, the Respondent raised several procedural issues regarding the Complainant’s jurisdiction to raise the present complaint. In essence, these issues related to ana allegation that the Complainant had raised the present matter numerous times in numerous fora, including an identical prior complaint before the Commission. By response, the Complainant submitted that the present matter, whilst relating to an ongoing issue, related to a set of allegations in respect of the most recent development in relation to the same. In addition to the foregoing, an issue was raised regarding the notification requirement stipulated by the Act. In circumstances whereby this matter will be determinative of the entire proceedings, it will be considered prior to the other preliminary issues and the substantive matter.

By submission, the Complainant stated that he issued form ES1 to the Respondent, with the same being marked as received on 28th March 2023. Thereafter, it appeared that the Respondent elected forward this document to the Commission, with the same being marked as received on 29th March 2023. When this document was forwarded to the Complainant, he confirmed that he was the author of the same and that he wished for a hearing to be convened in relation to the allegations contained therein.

When queried as to his compliance with the notification requirements set out in the Act, the Complainant submitted that he discharged his obligations under the same by issuing form ES1 to the Respondent. His position was that the Respondent subsequently took it upon themselves to forward the document to the Commission, circumventing the process of their own accord. In such circumstances, the Complainant submitted that he should not be penalised for an action of the Respondent.

In response to the preliminary point, the Respondent submitted that the Complainant had clearly and unambiguously failed to comply with the notification requirements set out in Section 21 of the Act. In such circumstances, they submitted that the matter could not proceed.

Prior to an Adjudicator assuming jurisdiction under the present Act, it is incumbent on a Complainant to demonstrate compliance with the notification requirement stipulated by the Act.

In this regard, Section 21(2) of the Act (as amended) provides that,

“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”.

Thereafter, subsection 4 provides that,

“The Director of the Workplace Relations Commission…shall not investigate a case unless the Director of the Workplace Relations Commission…satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.”

Regarding the present case, it is apparent that the Complainant served form ES1 on the Respondent, with the same being stamped as received on 28th March 2023. In such circumstances, it is further apparent that the Complainant has complied with the requirements of subsection 2 quoted above.

Thereafter it appears that the form was forwarded to the Commission, presumably on the same date, and received on the following day 29th March 2023. While the Complaint stated that he did not forward the document to the Commission, he later submitted that the same constituted the referral of the complaint.

In such circumstances, it is apparent that the requirements of subsection 4, quoted above, have not been met. Regarding the sequence of events outlined above, it is apparent that the Complainant neither received a reply from the Respondent or allowed for one month to expire prior to lodging the complaint.

While the Complainant has submitted that he should not suffer a detriment on foot of the Respondent’s actions, the fact remains that as the instigator of these proceedings, its falls to him to comply with the notification requirements set out by the Act. In regard I note that while the Complainant is a lay litigant, he has previously instated proceedings under the impleaded legislation and is aware of the procedure in relation to the same.

Having regard to the foregoing, I find that the Complainant had not complied with the notification requirements stipulated by Section 21 of the Act. 

I find that the Complainant had not complied with the notification requirements stipulated by Section 21 of the Act.  In such circumstances I cannot find that the Respondent engaged in prohibited conduct and as such the complaint is not well-founded.

Notification. Section 21