Complainant

Respondent

Parties

Nadine  Lattimore

Mr Cuisine Ltd.

Representatives

Self- represented         

Did not attend

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00067913-001

05/12/2024

The complainant has submitted a complaint that she was discriminated against by the respondent on the grounds of disability on 20/4/2024 when staff at the respondent’s store impeded her access by notifying her that she could not bring her guide dog into the store. The dog’s harness clearly identifies his accreditation to the Irish Guide Dogs for The Blind. She further contends that the respondent discriminated against her on the grounds of disability on 20/4/2024 when they failed to provide her with reasonable accommodation contrary to the provisions of the Equal Status Act.2000-2015 (“The Act”).

The complainant has a visual impairment.

She submitted this complaint to the WRC on 05/12/2024.

Submission of ES.1 in Compliance with section 21 (2) of the Act.

The complainant did not submit an ES.1 form in respect of this complaint to this respondent but did ask me to accept  that two notifications to the respondent, submitted on 26/4/2024, in respect of 2 separate but  identical, earlier  complaints, numbered ADJ 000-53389 and ADJ 000-53393 was surely sufficient notification of the act of discrimination of 20/4/2024,  and of her intention to pursue proceedings against the respondent. The complainant submits that these earlier notifications meet the requirements of section 21(2) of the Act in respect of the instant complaint.

The complainant has a severe visual impairment.

The complainant experienced great difficulty in securing the respondent’s correct details. Both of these  earlier complaints submitted on 9/8/2024, and based on the exact same incident of discrimination on 20/4/2024 as outlined in the instant complaint were lodged against an entity identified to her by the staff of the shop in which the act of discrimination occurred, by the Head Office, and by the Liquor Licence displayed on the window of the store which a friend secured for her.  The complainant noted that a search of the CRO undertaken by the adjudicator ultimately revealed that an incorrect entity had been named in the complaint forms and in the ES.1 forms.

The complainant upon learning that they were incorrect entitles immediately submitted this complaint against the correct entity, Mr Cuisine Ltd, employing the correct address.

In terms of compliance with section 21(2) of the Act, the complainant asks me to consider the fact that the wrongly named respondent wrote to the WRC on 25/9/2024 to state that he was not a sole trader, that he did not have any business in his own name and that he was director of a company is evidence that he was aware of her complaint of discrimination albeit set out in the two earlier complaints. His engagement of a solicitor to correspond with the WRC in October 2024 in respect of the two earlier complaints, based on the same incident of discrimination as contained in the instant complaint, and submitted to the WRC on 9/8/2024 is further evidence of the respondent’s knowledge of the existence of her complaint. The letter dealt with unconnected points.

This is proof, the complainant argues, that they were on notice of the complaints. The complainant argues that this should meet the requirement of section 21(2).

Compliance with statutory time limits.

The last act of discrimination occurred on 22/4/2024. The complainant lodged her complaint on the 15/12/2024.

The complainant asks that she be given the benefit of section 21 (7) of the Act which permits the adjudicator to extend the statutory time limit for submission of a complaint by a further 6 months.

She is a service user with a visual impairment. She made many efforts to secure the correct details but was hampered in this by the respondent and the respondent’s staff in the respondent’s store, Gala, in Drumcondra.

As soon as she had the name of the correct entity, she immediately submitted the complaint to the WRC.

The complainant maintains that these details amount to special circumstances enabling an extension as provided for in section 21(7) of the Act.

The respondent though on notice of the hearing did not attend.

Compliance with section 21 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.

There are two elements to compliance.

One is the submission of an ES.1 form or equivalent notification to the respondent.

The second is compliance with the time limits which while requiring a complaint of discrimination to be lodged within 6 months of the date of the last act of discrimination, does, in section 21 (7), allow discretion to extend for a further 6 months where special circumstances exist.

Relevant Law

Compliance with section 21(2)

“A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director.

(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 by referring the case to the Director,

                              and

                              (b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director, 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.

                              (3) If, on application by the complainant, the Director is satisfied—

                              (a) that exceptional circumstances prevented the complainant from notifying the respondent in accordance with subsection (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 provided for in that subsection,

                              the Director may direct that, in relation to that case, 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; and where such a direction is given, this Part shall have effect accordingly”.

The last act of discrimination occurred on 20/4/2024. Section 21 requires that the latest date for submission of the ES.1 form or notification to this respondent of intention to take proceedings was 20/8/2024.

The complainant asks that I consider the fact that the respondent’s notification to the WRC on 26/9/2024 concerning the hearing scheduled for 1/11/2024 into complaints numbered ADJ 53393 -CA- 65317  and ADJ 53389 – CA -00065313, advising that he was not  a sole trader, and not the correct respondent,  plus the respondent’s solicitor’s letter of 12/10/2024  is an acknowledgement by the respondent of  the existence of her complaint of discrimination, found  in  those identical complaints, and should assist her in her argument that the respondent was on notice of her complaint of discrimination and her  attendant compliance with section 21 (2),  dated 26/4/2024, even if the notice  emanated from a different source. The respondent also replied from an email address which she used.

It is not implausible to suggest that the respondent may have known through a circuitous route of the existence of the actual complaint of discrimination underpinning this complaint and the other two identical complaints. But those acknowledgements by the respondent in October 2024 of the existence of a complaint of discrimination came as a response to the notification for the hearing scheduled for December 2024 in respect of 2 different complaints , and came before  the lodgement of this complaint.

There is no evidence that the respondent was on notice of the allegation of discrimination and the possible institution of proceedings concerning this complaint before the complaint was lodged with the WRC on 15/12/2024.

I have to conclude that  the complainant did not comply with section 21(2)  in respect of this particular complaint believing, mistakenly, that two identical complaints, previously submitted, fulfilled her obligation to be compliant with section 21(2), albeit submitted against a wrongly named respondent.

Complaint ADJ 53393 -CA- 65317 was submitted against the wrong entity at the correct address. Complaint ADJ 53389 – CA -00065313 was delivered against an incorrect entity at an incorrect address.

This is a separate complaint and the request to see this complaint as interchangeable with ADJ 53393 and ADJ 53389 does not meet the requirements of the Act.

The onus lies with the complainant to acquire the correct name and address of the entity against whom she wished to bring a complaint.

I fully accept the impediments faced by the complainant in acquiring the correct details of the respondent, but it does not relieve her of the obligation to comply with section 21(2) of the Act- a statutory requirement. There are no statutory exemptions in this provision.

For the above reasons, I find that I do 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).