Complainant

Respondent

Parties

Seif  Elmughrabi

Wework

Representatives

  Self- represented.

 Simmons & Simmons (Ireland) LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068018-001

11/12/2024

The complainant submits that he was discriminated against contrary to the religion, race, and sexual orientation provisions of the Equal Status Act, 2000 when, as a service user, he was denied access to use the respondent’s office and coworking facilities. The complainant, in his capacity as an employee of one of the respondents’ clients had been previously provided with WeWork membership and a keycard to access the respondent’s premises and wished to continue as an independent service user.

The last instance of this discrimination occurred on 11/11/2024.

He submitted his complaint to the WRC on 11/12/2024.

Failure to comply with Section 21(2) of the Act

The complainant failed to comply with the requirement to notify the respondent of the prohibited conduct, alleged to have occurred, and to notify the respondent, of an intention, if not satisfied with the respondent’s response, to seek redress pursuant to the Act (the ES1 form) within 2 months after the prohibited conduct is alleged to have occurred.

The respondent states that as the complainant has not complied with this obligation, he is precluded, therefore, from seeking redress pursuant to the Act of 2000.

Failure to comply with Section 21(2) of the Act.

The complainant stated that the respondent was on notice of his complaint and concerns.

Failure to comply with Section 21(2) of the Act

I am obliged to establish in the first instance if I have jurisdiction to hear this complaint by establishing that the complainant is complying with section 21 of the Act by the submission of an ES.1 form or equivalent notification to the respondent

The matter of determining a preliminary issue in advance of addressing the substantive complaints has been dealt with in several cases.

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher [EDA101], the Labour Court issued a 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.   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".

The authorities point to the requirement to determine the jurisdictional issue of compliance with the statutory obligations in the first instance.

Relevant Law

Section 21(2) of the Act 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.

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (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 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.

 (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 find that the complainant failed to notify the respondent that he intended to seek redress under the statute. Therefore, I find that due to the complainant’s failure to comply with the mandatory requirements set out in Section 21(2) of the Act of 2000-2015, the respondent would be prejudiced were I to invoke Section 21(3)(a)(ii).

I find that the WRC does not have jurisdiction to hear this complaint.

I decide that I do not have jurisdiction to hear this complaint.

Non- compliance with section 21 (2) of the Act of 2000.