Complainant

Respondent

Parties

Viacheslav  Zhosan

Department Of Children, Equality, Disability, Integration and Youth

Representatives

Self-Represented

Mr Stephen O’Sullivan BL instructed by Ms Eileen Burke Solicitor CSSO

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00069415-001

19/02/2025

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

CA-00070174-001

22/03/2025

These matters came before the Workplace Relations Commission dated 19/02/2025 and 22/03/2023 respectively as a complaint submitted under section 77 of the Employment Equality Act, 1998 in relation to the former and under the Equal Status Act, 2000 in relation to the latter.   The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place 11/08/2025. 

The Complainant in his claim pursuant to the Employment Equality Act, 1998 alleges discrimination on grounds of gender, race, victimisation and unlawful treatment by discriminating against him in getting a job.  The Complainant alleges the most recent date of discrimination as 31/01/2025. 

The Complainant in his claim pursuant to the Equal Status Act, 2000 alleges discrimination on grounds of gender, race, victimisation, unlawful treatment by direct discrimination. 

The Complainant alleges the most recent date of discrimination as 04/12/2024. 

The Respondent denies the claims in their entirety. 

Remedies sought by the Complainant under the Employment Equality Act:-

·         Lost earnings April 2024 – January 2025 @ €2,500 per month

·         Non-material moral damages €26,000

Remedies sought by the Complainant under the Equal Status Act:-

·         Material losses €15,000 for himself

·         Legal expenses in Germany €2,046.80

·         Travel costs €96.64 (9 April 2024) & €95.48 (4 December 2024)

·         Lost jobseeker’s allowance €232.00 per week from April to December 2024

·         Hostel Expenses €48.80 December 2024

·         Missed WRC hearing (18 July 2024) €13,000 loss of potential remedy and legal costs

·         Non-material moral damages €30,000 for himself & €30,000 for his son

Both parties provided helpful written submissions including supporting documentation in advance of hearing for which I am grateful. 

Summary of Complainant’s Case as to the Preliminary Issue – Time Limits

The Complainant submits that after the second of April 2024 he did not have any reason to stay in Ireland and he had to leave and that is why he applied to the WRC.  The Complainant submits he didn’t make his complaint under the Employment Equality Act because he wasn’t here and also the same for the complaint under the Equal Status Act.  The Complainant submits he was suffering from an illness and that was another reason.

CA-00069415-001 complaint pursuant to the Employment Equality Act, 1998

Overview of WRC complaint form

Second Discrminatory Recruitment Round (December 2024 – January 2025)

Reapplication for Clerical Officer (Ukrainian-Speaking) position Hub via MMcK

The Complainant submits initially he was not shortlisted or contacted and he later learned someone else had been hired. 

The Complainant submits he was informed by HF of MMcK of another Clerical Officer opening requiring Ukrainian language fluency that perfectly matched his skills.  The Complainant submits that following renewed complaints about earlier discrimination he suddenly received an invitation for an interview on 31/01/2025 from MN in Pobal.   The Complainant submits a token interview took place on 31/01/2025 that lasted only a few minutes and that he was asked minimal questions about his qualifications his name was repeatedly mispronounced and he was offered no substantive follow-up.  The Complainant submits it seemed designed to formally reject his candidacy rather than genuinely assess his skills.  The Complainant submits he was informed another candidate was chosen and no constructive feedback was provided and he submits he was cautioned he might be excluded from recruitment with Pobal for two years which he submits is a clear sign of retaliation for his discrimination complaints. 

Summary of direct evidence of Complainant on affirmation

The Complainant submits he saw on Indeed that they were recruiting in Citywest and he applied on 23 December.  The Complainant submits they emailed and other people were recruited for this job.  The Complainant submits he received a phone call from MMcK and they asked him what kind of job he was looking for and he told them he was looking for an administrative job.  The Complainant submits they emailed him at the end of January with a new offer to work in Citywest.  The Complainant submits the skills required were to speak Ukrainian and English and knowledge of Microsoft Suite and Excel. 

The Complainant submits he was asked if he had any Pobal interview in last two years.  The Complainant submits he got a phone call for interview on 31 January.  The Complainant submits he thinks this offer for interview was made after the ES1 form of 14/01/2025.  The Complainant submits it (the interview) was very short in English with no interpreter and they only asked him one question about his job in 2005.  The Complainant submits he asked them at the end what will next steps be and they told him Pobal will decide.  The Complainant submits that on 4 February he got an email that another candidate would be accepted. 

The Complainant submits he sent another ES1 on 4 February and he didn’t get an answer to that. 

The Complainant filed his complaint with the WRC on 19/02/2025. 

Summary of cross-examination of Complainant

The Complainant is asked if he accepts in relation to the January / February recruitment that one person didn’t turn up and that four were sent for interview and that three turned up including the Complainant.  It is put to the Complainant that he was interviewed by an AP and a HEO and that no marking scheme had been designed for the process.  It is put to the Complainant that two females from Ukraine were hired arising from that process.  It is put to the Complainant that there is no evidence that either MMcK knew about the previous complaints made by the Complainant and no evidence that those interviewing would have known.  The Complainant is asked if he believes he failed the process because he is male and he is asked to provide his evidence of that.  This is repeated as the Complainant does not appear to understand the question and he is asked again what is his evidence or his reason for claiming that it is because he is male that he did not get selected to which the Complainant responds he was only invited for interview because he submitted an ES1 form. 

It is put to the Complainant that one of the essential requirements for the job was fluent English to which the Complainant responds he did a course for 3 months.

It is put to the Complainant that there would seem to be some doubt that he would meet the requirement that he should be fluent in English and asked if he (the Complainant) is fluent in English then why is there an interpreter today to which the Complainant responds there are all native speakers in this room and his level is not at that. 

Complainant closing submission

The Complainant says thanks to Ireland people for supporting Ukraine and he submits his complaint is not about a claim of the law but it is about how the department provided services in finding a job.  The Complainant submits he is asking to make an oral statement and he submits the Respondent submission was received on 7 August and it should have been 15 days before the hearing and he requests adverse inferences be drawn.  The Complainant makes reference to his final submission of the day prior to hearing not yet uploaded to the file and of which a copy is opened to the hearing.   The Complainant submits he has proved his prima facie case and that the Respondent must answer and that facts are not proved by documents and documents have mistakes.   

Summary of Respondent’s Case as to the Preliminary Issue – Time Limits

The Respondent representative does not accept that the move to Germany was a valid reason for not submitting the complaints on time and for not complying with the statutory notification requirements.  The Respondent submits that if the Complainant seeks to rely on illness as a reason for not filing his complaints on time or for not complying with the notification requirements he would need to have provided much stronger medical evidence than that which was provided.   

The Respondent representative submits that the Complainant has not established a prima facie case in respect of either the Equal Status or the Employment Equality Case. 

CA-00069415-001 complaint pursuant to the Employment Equality Act, 1998

Overview of written submission

The Respondent submits that during the period January 2024 to 19/02/2025 (the date of the EEA claim) there were Temporary Clerical Officer (CO) positions advertised.  Some were located in the Citywest Transport Hub to work with Ukrainian Beneficiaries of Temporary Protection and required fluency in English and Ukrainian.  The end user was DCEDIY.  The employer was MMcK.  The Respondent submits different recruitment agencies were contracted to find and interview suitable candidates.  It is submitted that on 22/02/2024 MMcK emailed the Complainant and noted that he had sent a CV expressing an interest in the Public Sector and suggested a phone conversation. 

It is submitted that on 29/02/2024 the Complainant’s CV was forwarded to ER in DCEDIY amongst others that had been received from Pobal.  It is submitted there was an induction pencilled in for 19/03/2024 for successful candidates but not for all persons whose CVs had been submitted. 

It is submitted that on 06/01/2025 MMcK emailed the Complainant and noted that he had applied for a clerical officer position on 23/12/2024 and that his position had been filled and closed in December 2024.  The Respondent submits the Complainant interviewed for a temporary clerical officer role and he was emailed to inform him that he had not succeeded in his application at this time.  The Respondent denies that it is because he had made a complaint of discrimination that he was called for interview.

The Respondent submits in response to the Complainant’s allegation that he was cautioned that he might be excluded from Pobal recruitment for two years implying retaliation that there is no record of such communication and none has been provided by the Complainant.  The Respondent submits that Pobal have stated that they maintain no record an exclusion of any nature by reference to an email from Pobal which provides as follows:

“Confirming that Pobal has not advised of any caution or ban on recruitment in relation to [the Complainant] to DCEDIY or any of the recruitment agencies on our framework.”   

The Respondent submits that insofar as the Complainant alleges that he was not given a job with DCEDIY proper recruitment procedures were followed.  The Respondent submits other Ukrainians were hired to similar posts including male Ukrainians.  The Respondent submits the Complainant was not subjected to any different treatment by reason of having made a complaint.

Recruitment process March 2024

It is submitted a staff requisition form requesting two positions was submitted to Pobal, the HR recruitment service provided for DCEDIY.

Pobal engaged with 6 external recruitment agencies to source suitable candidates for the positions.

The agencies sourced and submitted potential candidates CVs to the DCEDIY through Pobal.

The submitted CVs were reviewed and assessed by the requesting line manager within the department.  Based on this assessment suitable candidates were selected for the roles.  It is submitted the AP at the time considered all applicants suitable and requested that offers be made to the first 2 candidates who appeared on his list of CVs that were received.  It is submitted that both successful applicants were Ukrainian 1 male and 1 female.

Recruitment process January / February 2025

It is submitted a staff requisition form requesting two positions was submitted to Pobal, the HR recruitment service provided for DCEDIY.

Pobal engaged with 6 external recruitment agencies to source suitable candidates for the positions.

The agencies sourced and submitted potential candidates CVs to the DCEDIY through Pobal.

The submitted CVs were reviewed and assessed by the requesting line manager within the DCEDIY.

It is submitted that on 27/01/2025 UCTAT received four CVs for two temporary positions in Citywest.  It is submitted that UCTAT AP requested Ukraine Corporate Section to arrange brief meetings (10 minutes each) with the applicants including the Complainant.

It is submitted the interview meetings were conducted on 31/01/2025 with equal time allocated to each candidate.  The interview panel comprised an AP and an HEO for DCEIDY.  The interview questions were pre-agreed, standardised for all candidates and asked by the HEO.  The key topics covered were customer service / operational environment experience; experience in dealing with difficult situations / customers; and proficiency in Microsoft Packages.

The outcome of the interview was communicated to the Ukraine Corporate Section who would have relayed the information to Pobal. 

The Respondent submits that insofar as the complaint claims victimisation, he should particularise what complaint he made as to discrimination and when.  The Respondent submits the Complainant should particularise the adverse treatment after this.  The Respondent submits it is denied that the Complainant made a complaint as to discrimination to the knowledge of any person who made a relevant decision on employment or that such a complaint was treated as a factor in failing to give him employment. 

Summary of direct evidence of Respondent witness Colin Redmond (hereafter CR) on affirmation

The witness outlines the process which commenced with a requisition form which was received by his team and forwarded to Pobal who provide the HR services.  The witness submits the CVs are sent back to them and shortlisted.  The witness submits that phone calls are the set up to meet the candidates.  The witness submits the Citywest positions are difficult to fill because fluency in both Ukrainian and English is required.  The witness submits candidates are selected based on their customer service experience and Microsoft experience.  The witness submits there is no marking scheme and the purpose of the meeting / interview is to provide an opportunity to assess language skills.   

The witness submits that the people involved in this process would have no knowledge of ES1 forms having been submitted.  CR confirms the first notification they had of any complaints was when they were contacted by the WRC. 

CR confirms it would have been necessary to have both fluent Ukrainian and English. 

Summary of cross-examination of Respondent witness CR

The witness is asked by the Complainant if it was a phone call or zoom and he confirms it was on Microsoft Teams.  The witness confirms there were no notes from interviews.

The witness is asked if they usually do phone calls or videos to which he responds that due to the difficulty in finding people to successfully fill the roles they have moved on from what was initially a selection based on CVs to phone calls / interviews. 

The Complainant asks the witness why did he have a video call? 

The witness responds that this is arranged by Pobal.  The Complainant puts it to the witness that he was discriminated against because they could see him on zoom and they knew his gender because they could see him.   

The Complainant puts it to the witness that the email he sent to the main department email address on 14/01/2025 is the reason why he didn’t get the job to which the witness replies that the first they heard of any complaints he had made was when they received the WRC complaint form. 

Respondent closing submission

The Respondent representative submits the Complainant hasn’t shown a prima facie case.  It is submitted that no person involved in the process or in any stage of the process had any knowledge of any ES1 form.  It is submitted the March 2024 process resulted in two Ukrainians being selected one male and one female.  It is submitted that the only thing the Complainant can point to in order to show discrimination is that two females were appointed in the 2025 process but that this does not amount to a prima facie case in all the circumstances.

It is submitted there is no evidence presented by the Complainant of discriminatory questions being asked or there is no evidence presented by the Complainant that he was significantly better than the others in any way and that without that there is no prima facie case that would justify further enquiries by the WRC. 

There is the matter of the Complainant’s suitability for a role that requires fluent English and it is submitted we do not know that is the reason but there is a question the Complainant even met the requirements in the first instance. 

Preliminary Matters

There is a body of case law which suggests an Adjudication Officer is precluded by law from holding a substantive hearing until a decision on the preliminary matter is in fact reached.  In Mary Sheehy v Most Reverend James Moriarty [UD1264/2008] the Tribunal held as follows; 

‘’the Tribunal was set up under statute by the Oireachtas and did not have the authority based on constitutional or natural law and justice principles to conduct a hearing where the claims were not instituted within the time periods set out in the legislation”.

The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised from both and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

I am mindful of the case of Guerin v. SR Technics Ireland Limited[UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA101], the Labour Court considered the determination of an issue by way of preliminary decision.  The Labour Court referred to the judgments of Kenny J in Tara Explorations and Development Co. Ltd v. Minister for Industry and Commerce [1975] IR 242; and Hardiman J in B.T.F. v. Director of Public Prosecutions 2 ILRM 367 (the “B.T.F. Case”).  In the latter case Hardiman J held as follows

"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the Statute of Limitations is pleaded. In other cases, however, the position may be much less clear".

Furthermore, in the case of Bus Eireann v. SIPTU[PTD8/2004] the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of pure law where no evidence was needed and where no further information was required.”

In the case of Donal Gillespie v. Donegal Meat Processers[UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

The first matter I must decide is if I have jurisdiction to hear these complaints.  In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

CA-00070174-001 complaint pursuant to the Equal Status Act, 2000

Preliminary matter of jurisdiction

Complaint pursuant to the Equal Status Act, 2000 (“the ESA”)

I note this complaint was filed with the WRC on the 22/03/2025.   

This complaint as presented relates to interactions the Complainant had with the Respondent in relation to the following as alleged:

·         Discriminatory provision of services (accommodation, support)

·         Discriminatory denial of fair access to public sector employment opportunities

·         Ongoing victimisation following his complaints of discrimination both of which it is alleged are based on nationality, gender and victimisation for raising complaints of discrimination. 

The ESA requires a claimant to ‘seek redress’ or to ‘make a claim’ to the Workplace Relations Commission.  Prior to taking this step, a claimant is required to notify the respondent of the allegation and the intention to seek redress under the Act.  [emphasis added]

The WRC has prepared documents to cater for both steps: the WRC complaint form and the ES1 form. The forms themselves are not mandatory.  However, the prior notification requirement is mandatory.   

The Relevant Facts

I note the Complainant submits that in line with established procedures under the Equal Status Acts he sent three formal ES1 notifications to the Respondent on 14 January 2025, 4 February 2025 and 20 February 2025 respectively.  I note the email address utilised for this purpose by the Complainant was contact@equality.gov.ie.  It remains unclear whether or not the aforementioned emails triggered an automatic reply confirming receipt. 

However, I note also that the procedure for making an Equal Status complaint is clearly set out on the WRC website which provides as follows:

“A standard form, known as the ES 1 form, may be used for notification purposes, and may be downloaded here - ES 1 form - MS Word version - ES 1 form - PDF version. You should keep a copy of the notification you send. You should also send it by registered post or get a certificate of posting from the Post Office.”

I further note the ES1 form itself provides as follows:

What do I do about sending the form?

“Send it direct to the respondent (that is, the person or organisation you think discriminated against you). Please do not send this form to the WRC.  Keep a copy of the notification you send.  You should also send it by registered post, or get a certificate of posting from the Post Office.”

I note the Respondent submits the first it heard of the claim under the ESA was when correspondence issued from the WRC. 

I note the ESI form of 14 January 2025 submitted by the Complainant to the email address set out provides detail in respect of a recruitment campaign in March / April 2024 together with further detail on a recruitment campaign in December 2024 alleging discrimination on the grounds of gender and race.  The detail provided by the Complainant on the ES1 form relates to his complainant under the Employment Equality Act, 1998 (“the EEA”).  The EEA does not require the serving of an ES1 Form.  

I note the ES1 form of 4 February 2025 submitted by the Complainant to the email address set out above provides detail in respect of a recruitment campaign in March / April 2024 together with further detail on a recruitment campaign in December 2024 alleging discrimination on the grounds of gender and race.  The detail provided by the Complainant on the ES1 form relates to his complainant under the Employment Equality Act, 1998 (“the EEA”).  The EEA does not require the serving of an ES1 Form.  

I note the information guide on using the ES1 Form sets out clearly and in plain language as follows under the heading “What is this form about?” on the body of the form itself:

“Under the Equal Status Acts 2000-2015, it is generally unlawful in Ireland to discriminate when providing goods, services, facilities, accommodation or education on the basis of a person’s gender, civil status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community and in certain cases where a person is in receipt of a rent supplement.” 

I note further information is provided on the WRC website as follows: 

“Discrimination at work is covered by the Employment Equality Acts. If you are an employee, or aretrying to get a job, and you feel you are discriminated against unlawfully, on any of the prohibited grounds, you can make a claim under these Acts. The legislation covers all aspects of work including recruitment and promotion, the right to equal pay, conditions of employment, training and/or experience. [emphasis added]

Discrimination outside the workplace is covered by the Equal Status Acts. The legislation mainly covers access to goods and services. If you are trying to access goods or services and you feel you are discriminated against unlawfully on any of the prohibited grounds, you can make a claim under these Acts. It includes access to facilities for banking, entertainment, cultural activities or transport, professional or trade services, health services, access to education and accommodation (including HAP). It does not apply to access to a licensed premises. [emphasis added]

I note the ES1 form dated 20/02/2025 submitted by the Complainant to the email address set out above details events that occurred on 04/12/2024 when he returned to Ireland from Germany.  The Complainant alleges discrimination on the grounds of race and victimisation when he was refused accommodation on 04/12/2024. 

Section 21 of the Equal Status Act 2000, as amended, states that before seeking redress the complainant shall within 2 months after the prohibited conduct is alleged to have occurred notify the respondent of the nature of the allegation and their intention to seek redress under the Act.

It is well settled that a complainant must establish they have complied with the notification requirements stipulated by the Equal Status Act, 2000 in order that an adjudicator officer can assume jurisdiction to hear the substantive matter.    

The Relevant Law

This complaint of discrimination under the Equal Status Act, 2000 is subject to a notification requirement in accordance with Section 21 of the Act.  Accordingly, it is relevant and necessary to set out the germane provisions of Section 21 in order to inform an inquiry into this preliminary jurisdictional issue. 

Section 21(2)(a) of the Equal Status Acts, 2000 – 2015 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.

Section 21(3) of the Act states:

(a)    On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may –

(i)                  for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii)                exceptionally, where satisfied that it is fair and reasonable in the particular circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

          and where such direction is given, this Part shall have effect accordingly.

(b)    In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including –

(i)                  the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii)                the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

I note the Respondent submits it did not receive the ES1 forms before being notified of the WRC claims.  I note the relevant ES1 form for the purpose of these complaints under the ESA is the ES1 form dated 20/02/2025.  I am satisfied the other two ES1 forms referenced above namely forms dated 14 January 2025 and 04 February 2025 are superfluous to requirements and not necessitated by statute in the context of the complaints before me pursuant to the Employment Equality Act, 1998. 

From the factual matrix provided by the Complainant, it is apparent that by issuing form ES1 to the Respondent, he has complied in part with the notification requirements under the ESA. 

However, the ES1 dated 20/02/2025 relates to an alleged incident on 04/12/2024 which is outside of the time limit for serving same under statute as provided for in section 21(2)(a) set out above.

I note the Complainant on his WRC complaint form submits the most recent date of discrimination as 04/12/2024 and provides the date of 20/02/2025 as the date on which he notified the service provider using the ES1 form.  Notwithstanding the Respondent submission that they did not receive any of the ES1 forms submitted the critical ES1 form of relevance to the Complainant’s complaint under the ESA did not satisfy the statutory requirement set out in section 21(2)(a). 

The Equal Status Acts require a Complainant to comply with two separate time limits.  The first, at section 21(2), provides that a complainant must, within two months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress.  Section 21(3)(a) provides that, for reasonable cause, the WRC may extend the two-month time limit to four months, or exceptionally, may disregard the time limit requirement. 

The second time limit is set out at section 21(6) of the Act, and this provides that a complaint of discrimination may not be considered by an adjudication officer if it is referred to the WRC more than six months after the most recent incident of discrimination.  For reasonable cause, this time limit may be extended to 12 months. 

The language in section 21 of the Act is prescriptive, clear and specific.  It is clear that the obligation to meet the time limits and notification falls squarely on a complainant.  Statutory requirements, such as the notification requirement are an important and fundamental necessary part of a proper operational judicial process and are present to create certainty for all parties and must be fully respected.

The Complainant in the within case has sought an extension of both time limits as he seeks to include incidents of alleged discrimination as far back as 2022 as set out in his WRC complaint form. 

Section 21(3) states:

(3) (a) On application by a complainant the Director of the Workplace Relations Commission, as the case may be, the Circuit Court may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or [emphasis added] 

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly. [emphasis added]

That test for reasonable cause is well defined, and a complainant must show that the explanation not only provides a context for the delay but must also be a cause of the delay.

The general principles which apply are that something must be advanced by a complainant that will both explain and excuse the delay.  It is a matter for the Complainant to establish that there is reasonable cause for the delay.  It is well settled that an application for an extension of time must both explain the delay and provide a justifiable excuse for the delay.   

I am mindful of Donal O’Donnell and Catherine O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30 wherein Costello J in the High Court held as follows:

“The phrase ‘good reasons’ is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings.  What the Plaintiff has to show (and I think the onus under Order 84 Rule 21 is on the Plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay.  It is clear from the authorities that the test places the onus on the Applicant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  Secondly, the onus on the Applicant to establish a causal link between the reason proffered for the delay and his or her failure to present the complaint in time.  Thirdly, the court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause.  It is the actual delay that must be explained and justified.  Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a complaint that those factors were the actual cause of a delay.  Finally, while the established test included a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”  [emphasis added] 

In particular, as was pointed out by Costello J in the passage quoted above, a court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the proceedings. 

In O’Donnell, the Court found that the complainant had failed to establish a causal link between the factors relied upon by her and the delay in presenting the claim and, accordingly, the Court held that the complainant had failed to adequately explain the delay and provide a justifiable excuse for the delay. 

The Labour Court in the case of A Bank v. A Worker [EDA104] stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay is an “irreducible minimum requirement.” [emphasis added] 

The Labour Court drew heavily from the High Court case of O’Donnell when setting out the now well-established test for reasonable cause for extending the time limit to 12 months in Cementation Skanska (Formerly 1 Kvaerner Cementation) Limited v Carroll [DWTO338] 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.  In the context in which the expression reasonable appears it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time.  The length of the delay should be taken into account.  A short delay may require only a slight explanation whereas a long delay may require more cogent reasons.  Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time.  Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

For an explanation of reasonable cause to succeed –

(i)                  A complainant must explain the delay and afford an excuse for the delay.

(ii)                The explanation must be reasonable.

(iii)               There must be an objective standard applied to the circumstances of the case.

(iv)               There must be a causal link between the circumstances and the delay.

(v)                A complainant must show, that if the circumstances were not present, he or she would have submitted the complaint on time. 

It is evident from the authorities that the test places an onus on a complainant seeking an extension to identify a reason for the delay and to establish that reason relied upon provides a justifiable excuse for the actual delay. 

The burden of proof in establishing the existence of reasonable cause rests with the Complainant. To discharge that burden, the Complainant must both explain the delay and offer a justifiable excuse for the delay.  The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time.

Finally, I must satisfy myself that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

It was verified with the Complainant at hearing on two occasions, in order to ensure clarity and understanding, that his application for an extension of time was grounded on the following:

(1) because he was in Germany and

(2) because he was suffering from an illness. 

I find I am not satisfied that the reasons for the delay advanced by the Complainant amount to the circumstances contemplated in Cementation for the following reasons.  The fact the Complainant was in Germany as submitted by him bears no relationship to his failure to submit the statutory notification required by the ESA on time as he returned from Germany by his own admission on 04/12/2024. 

Accordingly, he was here in Ireland during the material time i.e., two months from 04/12/2024 which was the day he returned and the day on which the discrimination is alleged to have occurred. 

However, I note the medical reported provided by the Complainant in support of his claim appears to have arisen out of a consultation in Ukraine dated 03/01/2025 which would lead one to infer that the Complainant may have travelled to Ukraine shortly after his return to Ireland on 04/12/2024 which is the date of the alleged discrimination.

When I consider the medical reason advance by the Complainant, I note the Complainant makes reference in his WRC complaint form to having missed a previously scheduled WRC hearing related to a different respondent on 18 July 2024 which would seem to suggest that the Complainant was capable of filing complaints in or around February / March 2024 which would have more than likely been scheduled for hearing in July.  I consider this evidence to significantly undermine the Complainant’s ability to satisfy the test for that reason.  

I find the Complainant’s evidence advanced regarding his illness to be inconsistent and quite simply not borne out by the facts when I note the Complainant engaged in the filing of other complaints to the WRC on or around the relevant time timeframe for compliance with the statutory notification period or shortly thereafter.  On that basis I can find no impediment rendering him incapable of satisfying the statutory notification requirements as I do not accept the serving of the ES1 form on the Respondent could reasonably be seen to be more onerous than the filing of a complaint/s to the WRC. 

The Complainant’s evidence that his health was such that he was not in a position to comply with the requirements simply does not align with the facts as presented. 

While the reasons relied upon by the Complainant may explain the delay, I am unable to find they excuse the delay.  The Complainant has not met the standard of reasonable cause set out in the well-established test in the Cementation case of which I am mindful.  I am satisfied that nothing has been advanced by the Complainant that both explains and excuses the delay.   

Applying Cementation, I find the reason put forward by the Complainant does not explain or excuse the delay; it is not a reasonable explanation; and it does not persuade me to grant an extension of time.

Accordingly, I am satisfied on the balance of probabilities that no reasonable cause has been demonstrated by the Complainant for the extension of time.  

For an Adjudication Officer to have jurisdiction to investigate a complaint under the Act, the Complainant is required to meet both prescribed time limits.  I am of the view that, in light of my findings above that the Complainant has not met the requirements of section 21(2)(a) I am not required to consider whether he has met the time limit set out in 21(6) given that the outcome of such consideration would not make any material difference to my findings regarding my jurisdiction.

I find this failure on the Complainant’s part to comply with the statutory notification requirements deprives me of jurisdiction to hear the within complaint and to determine the substantive matter.  In such circumstances I would be acting ultra vires if I were to assume a jurisdiction that I do not have. 

I have carefully inquired into the complaint and I have considered the matter under section 22 of the Acts which provides that the Director may dismiss a claim at any stage if of the opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. Section 22 of the Equal Status Acts provides for dismissal of claims as follows:-

“22.— The Director may dismiss a claim at any stage in the investigation if he or she is of opinion that the claim has been made in bad faith or is frivolous or vexatious, misconceived or relates to a trivial matter.”

It is widely accepted by the Courts that the terms are legal terms which can be often used interchangeably as held by the Barron J in Farley v Ireland [1997] IESC 60

“So far as the legality of matters is concerned frivolous and vexatious are legal terms. They are not pejorative in the sense or possibly in the sense that Mr. Farley may think they are. It is merely a question of saying that so far as the plaintiff is concerned if he has no reasonable chance of succeeding then the law says that it is frivolous to bring the case.

Similarly, it is a hardship on the defendant to have to take steps to defend something which cannot succeed, and the law calls that vexatious”.

The terms “frivolous or vexatious” were carefully considered by the High Court in Patrick Kelly v The Information Commissioner [2014] IEHC 479 which is instructive as to the meaning of these terms:

“As a matter of Irish law, the term “frivolous or vexatious” does not, as noted by Birmingham J. in Nowak, necessarily carry any pejorative connotations but is more concerned with the situation where the litigation (or, in this instance, application) can be described as futile, misconceived or bound to fail.”

In conclusion, based on all of the foregoing, I am satisfied that this claim as presented is futile and bound to fail because I do not have jurisdiction in the first instance to determine on the substantive matter due to the Complainant’s failure to comply with the mandatory statutory notification requirements regarding the notification of a complaint as set out in section 21(2) of the Equal Status Acts, 2000 – 2015.

On that basis I dismiss the complaint in accordance with section 22 of the Acts. 

CA-00069415-001 complaint pursuant to the Employment Equality Act, 1998

In conducting my investigation and in reaching my decision, I have reviewed all relevant submissions and supporting documentation presented to me by the parties.  I have carefully considered the oral evidence adduced at hearing.  I deemed it necessary to make my own inquiries into the complaint during hearing to establish and understand the facts and to seek clarification on certain matters. 

I am obliged to draw my conclusions from the facts as presented to me and by the application of the law to those said facts whilst taking into account all other relevant factors and surrounding circumstances.  The role of the Adjudication Officer is to decide the case before him/her, resolving conflicts in evidence according to the direct evidence presented at hearing.   

The Relevant Law

Section 77 of the Employment Equality Act provides: 

(5) (a) Subject to paragraph (b), a claim for redress in respect of discrimination or victimisation may not be referred under this section after the end of the period of 6 months from the date of occurrence of the discrimination or victimisation 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 General of the Workplace Relations Commission or Circuit Court, as the case may be, 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.

I note this complaint was filed with the WRC on 19/02/2025.  The cognisable period for this complaint is from 20/08/2024 to 19/02/2025.  The Complainant at hearing made an application for an extension of time in respect of this complaint citing the reasons as set out above in his application for an extension under the ESA complaint. 

I do not find it necessary to set out the law again or the relevant precedent in the context of this application to extend time and I refer to that which is set out above on the matter of an application for an extension of time. 

Notwithstanding, for the avoidance of doubt I am unable to accept there would have been a requirement for the Complainant to be here in Ireland to file a complaint to the WRC or indeed to attend a hearing.  The Complainant could have requested either a hybrid or a remote hearing.  The fact that he was in Germany or indeed in Ukraine is immaterial to the filing of a complaint or to the attendance at hearing due to the range of facilities available to a complainant in order to assist. 

Having regard to that which is set out above by way of a ruling on the application for an extension of time, I find that the cognisable period for the purposes of the complaint as presented is 20/08/2024 to 19/02/2025 and consequently my decision is limited to any acts of discrimination that occurred during that period only.

CA-00069415001

The Complainant alleges discrimination on the grounds of gender; race; that he has been unlawfully treated by discriminating against him in getting a job; and that he has been treated unlawfully by discriminating against him in victimising him.  The Complainant seeks to ground his complaint on alleged discrimination in recruitment and he grounds his victimisation complaint on the fact he was not chosen for the job and his allegation of a threat of a two-year ban from recruitment with Pobal. 

The Relevant Law

Discrimination is defined as:

6.—(1) For the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the "discriminatory grounds") which—

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

The Burden of Proof:

Section 85A of the Employment Equality Act imports the burden of proof requirement to be established by both a complainant and a respondent.  The section shifts the burden of proof to the respondent where facts are established by a complainant “from which it may be presumed that there has been discrimination in relation to him or her”. 

Section 85A (1) provides as follows:

—(1) “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Commission to the [Director General] under section 85(1), facts are established by or on behalf of the Commission from which it may be presumed that an action or a failure mentioned in a paragraph of that provisionhas occurred, it is for the respondent to prove the contrary.

(4) In this section “discrimination” includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

This requires a complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in so doing, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has consistently held that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to a respondent.  “Prima facie” evidence is evidence which in the absence of any contradictory evidence would lead any reasonable person to conclude that a discrimination had occurred.

In Margetts v. Graham Anthony & Company Limited [EDA038] the evidential burden which must be discharged by a complainant before a prima facie case of discrimination can be said to have been established was outlined by the Labour Court as follows:

“The law requires the complainant to establish facts from which it may be inferred that discrimination has taken place.  The appellant must, on the balance of probabilities, prove those facts from which such inferences can be drawn.  When these facts are established to the satisfaction of the Court, the onus shifts to the respondent to show, on the balance of probabilities, that it did not discriminate against the appellant.  The mere fact that the complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination.  The complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.”  [emphasis added] 

The Labour Court in the case of Melbury v. Valpeters [EDA0917] held as follows in its consideration of section 85(A):

“…provides for the allocation of the probative burden in cases within its ambit.  This requires that the Complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon.  All that is required is that they be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculations, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

The Equality Officer in Minaguchi v. Mr Ray Byrne T/A Wineport Lakeshore Restaurant [DEC-E/2002/20] stated as follows:

“It appears to me that the three key elements which need to be established by a complainant to show that a prima facie case exists are:

·         That s/he is covered by the relevant discriminatory ground(s).

·         That s/he has been subjected to specific treatments; and

·         That this treatment is less favourable than the way someone who is not covered by the relevant discriminatory ground is, has been or would be treated.”

In order for the Complainant to meet the burden of proof on him he must first identify a comparator who received more favourable treatment than he did.  He must also establish the facts from which less favourable treatment could be inferred.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before the burden of proof is met by the Complainant so that it then shifts to the Respondent.

Equality law is based on comparison – how one person is treated by comparison to another who does not possess the relevant protected characteristic. It is therefore necessary to support a claim of discrimination by pointing to how another person (the comparator), not having the protected characteristic relied upon, was, is or would be treated in a comparable situation.

Section 6(1)(a) of the Employment Equality Act provides that discrimination shall be taken to have occurred where “a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any grounds specified in subsection (2)….” 

The wording of section 6 “would be treated” allows for the use of hypothetical comparators in appropriate circumstances of discriminatory treatment, other than in relation to equal pay where an actual comparator is required. 

When considering the primary facts adduced by the Complainant, I must take into consideration the Respondent’s contrary evidence when determining whether the burden of proof should shift to the Respondent.  The Labour Court in the case of Dyflin Publications Limited v. Spasic [EDA 0823] held as follows:

“…the Court should consider the primary facts which are relied upon by the complainant in their proper context.  It also indicates that in considering if the burden of proof shifts the court should consider any evidence adduced by the respondent to show that, when viewed in their proper context, the facts relied upon do not support the inference contended for by the complainant.”   

The Relevant Facts

The recruitment process in March 2024 did not fall within the cognisable period of this complaint.  The recruitment processes of December 2024 and January / February 2025 fall within the cognisable period of this complaint and accordingly I have jurisdiction to determine on these matters. 

I note the Complainant returned to Ireland from Germany on 04/12/2024.  I note the Complainant applied for a Clerical Officer position on 23/12/2024 by which time the process had closed and the position had been filled.

I note the Complainant interviewed for a position on 31/01/2025.  The Complainant was notified of same on 29/01/2025 by Pobal and he was provided with details of how to connect on Microsoft Teams.

I note the essential requirements as follows:

·         Fluent in English and Ukrainian

·         Proficient in Microsoft Office suite

·         Personally responsible and trustworthy

I note the desirable requirements as follows:

·         Experience of operational environment

·         Experience of online databases

·         Strong interpersonal skills

I note the key responsibilities of the role as follows:

·         Allocation of accommodation to Beneficiaries of Temporary Protection

·         Updating internal database

·         Liaising with accommodation providers and others as directed

·         Other related duties as directed by the shift supervisor

I note with interest that what had initially started out as a selection process determined on the basis of a candidate’s CV for temporary positions in Citywest had evolved over time to a process that required a brief face to face interview albeit online. 

I am unable to elevate the Complainant’s claim that he was discriminated against in the interview process because it was on zoom / teams and because they could see his gender to a prima facie case. 

I am satisfied the interview process was undertaken with all candidates in the exact same way using the exact same technology. 

I have taken cognisance of the Labour Court in the case of Rescon Limited v Scanlan 2, [EDA 085/2008] where it was held as follows: 

"In this case the Complainant has adduced no evidence to establish a nexus between his

gender and the Respondent's failure to offer him the disputed post other than that a

woman was appointed and he was not. In the Court's view a mere difference in gender

and a difference in treatment, in the sense that the Comparator was appointed and the

Complainant was not, could never in itself provide a sufficient evidential basis upon which

to raise a presumption of discrimination." [emphasis added] 

In applying the reasoning of the Labour Court set out above, the fact the successful candidates were female does not establish a basis to ground gender discrimination.  The Complainant must establish that he was treated less favourably because he was male.      

The Complainant makes an allegation of discrimination on the ground of race.  All candidates for the positions were Ukrainian.  The Complainant has not provided a comparator of a different race nor did he describe any set of circumstances relating to how he was treated differently to a person of a different race.   

In this case this presumption can be rebutted as the evidence shows that the Respondent in fact hired two candidates who shared the same grounds (both Ukrainian) now being relied upon to pursue a claim for discrimination by the Complainant.  I find I am unable to support the argument maintained by the Complainant that discrimination has occurred on the grounds of race in circumstances where a comparator, hypothetical or otherwise, and who did not possess the same protected characteristic has been identified by the Complainant. 

The Labour Court in Intesa Sanpaola Life Ltd. v Nowak [EDA 1840] held as follows:

“It is settled law that, in circumstances such as this, the mere coincidence of nationality and a perceived detriment is not sufficient to ground a complaint of discrimination. Something more must be established that would suggest the possibility that there is a relationship between the two facts.” 

It is an inescapable and an undisputed fact that fluency in English is one of the essential requirements for the role.  The Complainant submits that he was fluent in English at the time of the interview.  However, I do not find this assertion plausible because it is simply not borne out by the facts.  The Complainant did not speak in English at hearing and did not address the hearing in English but instead sought to rely on the services of an interpreter at all times. 

Furthermore, I note and I find it curious that the CV exhibited by the Complainant in his submissions sets out in comprehensive detail his personal profile, his key skills, his further education and training, additional information, continued professional development, his interests and yet there is no reference whatsoever to his language skills / proficiency in English or to the three month course referred to at hearing through which the fluency averred to by the Complainant was acquired by him. 

I am satisfied the requirement for fluency in English was a genuine and determining occupational requirement for the position when one considers the job specification in the contest of liaising with accommodation providers which is to be reasonably considered as a legitimate and proportionate objective.  I note the evidence of the Respondent witness when he averred the purpose of the meeting / interview on zoom / Teams was to provide an opportunity to assess language skills.

I am satisfied that the fact of rejection at interview does not establish an inference of discrimination when I consider all the facts as set out above.  

On the balance of probability, I find it is more likely than not that the Complainant was unsuccessful at interview because he did not possess one of the essential requirements for the job.  I am of the view it is very clear from the requirements of the role why fluency in English would be essential particularly in light the requirement to liaise with accommodation providers most if not all of whom would require conversations on this matter to take place in English.  There would be no interpreters on tap for such regular and daily interactions. 

Having carefully considered the evidence from both sides in this matter in line with Dyflin Publications Limited, I conclude that the Complainant made mere assertions without providing the primary facts to show that race or gender were determining factor in his unsuccessful application for a position. 

I accept and agree with the Respondent submission at close of hearing that there is a question that the Complainant ever met the job requirements in the first instance.    

I am satisfied the Complainant was treated no differently to any other candidate on the grounds of his race or on the grounds of his gender as alleged.   

The Complainant has established no causal link and he has not established facts that give rise to an inference of discrimination. 

Complaint of Victimisation

The Relevant Law

Victimisation is defined in broad terms under The Employment Equality 1998 Act section 74(2) provides:

“(2) For the purposes of this Part, victimisation occurs where the dismissal or other penalisation of the complainant was solely or mainly occasioned by the complainant having, in good faith—

(a) sought redress under this Act or any enactment repealed by this Act for discrimination or for a failure to comply with an equal remuneration term or an equality clause (or a similar term or clause under any such repealed enactment),

(b) opposed by lawful means an act which is unlawful under this Act or which was unlawful under any such repealed enactment,

(c) given evidence in any criminal or other proceedings under this Act or any such repealed enactment, or 

(d) given notice of an intention to do anything within paragraphs (a) to (c).”

The Labour Court has held that the definition of victimisation contained in that section contains essentially three ingredients and in the case Department of Defence v Barrett [EDA 1017] the Court held that in order to make out a claim of victimisation under the Act it requires that: -

“(a) the Complainant had taken action of a type referred to at section 74(2) of the Acts (a protected act),

(b) the Complainant was subjected to adverse treatment by the Respondent, and,

(c) the adverse treatment was in relation to the protected act having been taken by the Complainant.” 

The Labour Court in Department of Defence v Barrettheld “the catalyst alleged for the adverse treatment complained of must, in some sense, come within the ambit of one of the protected referred to in section 74(2) of the Acts”.  

It is apparent from the above that there must be a detrimental effect on the Complainant which is caused by his having undertaken a protected act of a type referred to at (a) to (g) of section 74(2). 

I must decide in the first instance whether or not the Complainant took an action that could be regarded as a “protected act” within the meaning of section 74(2) of the 1998 Act.  It is clear from the wording of “victimisation” in the 1998 Act that a complaint of victimisation must relate to a complaint under the 1998 Act and not a general complaint of victimisation. 

The alleged victimisation to which an employee was subjected must have a nexus with an action to assert equality rights in order to be admissible as such a claim.  In Moriarty v. Dúchas [DEC-E2003-013] the Equality Tribunal emphasised that the definition of victimisation in the 1998 Act is very specific and “it is necessary that a complainant demonstrate the connection between his or her actions in defending entitlements under the Act and the treatment complained of.” 

Victimisation is a stand-alone cause of action which requires specific proofs in that there must be evidence that the alleged adverse treatment occurred as a reaction to any of the situations listed at (a) to (g) of section 74(2). 

Therefore, in order to maintain a claim of victimisation within the meaning of the Employment Equality Acts it is necessary that the Complainant demonstrates the connection between his actions in relation to defending his rights under the Acts and the adverse treatment complained of. 

The Relevant Facts

The Complainant alleges victimisation in his WRC complaint form albeit he did not advance or engage much with this specific element of the complaint at hearing as the main focus was on that which constituted the central plank of his complaint namely discrimination on the grounds of gender and race when he was unsuccessful at interview. 

For completeness I will address the claim of victimisation hereunder on the basis of totality of the evidence adduced. 

I am satisfied the filing of an ES1 form / s can be considered a protected act pursuant to section 74(2).  The victimisation alleged by the Complainant is that he has been subject to a two-year ban by Pobal because he was asked the following question by the third-party recruitment agent “have you interviewed with Pobal in the last two years?  If so, with who and when?”

It would appear the Complainant seemed to have assumed this question that he was asked in some way implied what he refers to as a two year look back policy/ rule affecting access to recruitment.  I accept the Respondent submission that there is no ban on recruitment in relation to the Complainant.  I am not satisfied the Complainant’s fully understands the role of Pobal in the selection process and his assumption unsupported by any evidence that Pobal would have either the authority or the remit to impose a recruitment ban is fanciful at its height. 

I find I am simply unable to elevate an assumption to the status of evidence. 

I am satisfied the role of Pobal in this process may be best described as the HR conduit between the recruitment agency of which there are six and the end user which is the relevant department.   

Thus, the Complainant has failed to establish a prima facie case of victimisation contrary to section 74(2) of the Acts.   

Applying the law and the authorities to the facts of this case, I find that the Complainant has failed to establish facts from which victimisation within the meaning of section 74(2) of the Acts can be inferred.  The Complainant has not met that threshold.   

Accordingly, I find that the Complainant is not entitled to succeed in respect of this element of his complaint under the impleaded act.

Having carefully considered the evidence, submissions and documents presented, I must determine that the Complainant was not discriminated against on the grounds of gender and race, and he was not victimised by the Respondent.

CA-00069415-001 complaint under section 77 of the Employment Equality Act, 1998

For the reasons stated above, I decide that that the Complainant did not establish a prima facie case of discrimination in accordance with section 85A of the Acts and, therefore, I find that the Respondent did not engage in unlawful discrimination.  

I find the Complainant has failed to establish facts from which victimisation within the meaning of section 72(2) can be inferred.   Accordingly, I decide this complaint is not well-founded.   

CA-00070174-001 complaint under section 25 of the Equal Status Act, 2000

For the reasons stated above, I dismiss the complaint in accordance with section 22 of the ESA. 

Gender; race; victimisation;