Complainant

Respondent

Parties

Maria  Byrne

Tuath Housing Association

Representatives

Bill Lonergan, Solicitor

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00074810-001

26/08/2025

The complaint was referred to the WRC on 26 August 2025. The Complainant alleges that she was subjected to discrimination and harassment contrary to the Acts. The Respondent denies the complaint and raised a preliminary objection concerning compliance with the notification requirements contained in section 21 of the Acts.

The Complainant submits that she was subjected to discrimination and harassment by the Respondent on the disability ground in connection with the provision of accommodation and related services.

In relation to the preliminary issue, the Complainant stated that she believed that she had notified the Respondent correctly. The Complainant accepted, however, that she had no proof of postage, no certificate of posting, no registered post receipt and no documentary evidence demonstrating service of the ES.1 notification form or equivalent notification upon the Respondent.

The Complainant stated that she experiences memory difficulties arising from an acquired brain injury and that she relied upon emails and written records to assist with recollection of dates and events.

The Complainant further stated that she believed that the WRC complaint form and the Form ES.1 had been sent together by ordinary post but that she could not recall the precise date upon which the Form ES.1 was allegedly sent.

The Respondent denies the allegations of discrimination.

The Respondent stated that it is a not-for-profit approved housing body providing accommodation services to a wide variety of tenants, including persons with additional needs.

The Respondent submitted that it engaged professionally and respectfully with the Complainant at all times and denied that it subjected the Complainant to discrimination, harassment or a failure to provide reasonable accommodation.

The Respondent raised a preliminary objection concerning compliance with section 21 of the Acts. The Respondent submitted that the Form ES.1 relied upon by the Complainant was unsigned and undated and that it has no record of receiving the Form ES.1 from the Complainant.

The Respondent further submitted that the Complainant has failed to establish when, or if, the Form ES.1 was served and that the complaint was referred to the WRC before the statutory notification procedure contemplated by section 21 of the Acts had been exhausted.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by the parties at the hearing.

Preliminary Decisions:

In Brothers of Charity (Roscommon) Ltd. v. Marian Keigher (EDA1014), 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 [2005] 2 I.L.R.M. 367. In the latter case Hardiman J. found:

"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.”

In Donegal Meat Processors v. Donal Gillespie t/a Foyle Donegal (UDD2114) the Labour Court noted that, seeking to have the substantive issue and the jurisdictional issue dealt with together was:

“akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance. […] Only if the court determines that it has jurisdiction to do so can it go on to consider the fairness or otherwise of the dismissal itself”.

Having regard to the authorities outlined above, I am satisfied that there is a strong basis for determining this matter by way of preliminary issue.

Preliminary Issue – Compliance with Section 21 of the Equal Status Acts

Before considering the substantive matters arising in this complaint, I must first address the preliminary objection raised by the Respondent concerning compliance with section 21 of the Acts.

Compliance with Section 21(2) of the Acts

Section 21(2) of the Acts provides inter alia that, before seeking redress, a complainant shall notify the respondent in writing of:

(i) the nature of the allegation; and

(ii) the complainant’s intention, if not satisfied with the respondent’s response, to seek redress under the Acts.

The complaint form submitted to the WRC stated that the Complainant had notified the Respondent by way of Form ES.1 on 12 August 2025. However, the Respondent denied ever receiving any such notification and submitted that no Form ES.1 or equivalent notification dated 12 August 2025 had been furnished to either it or the WRC.  The Form ES.1 relied upon by the Complainant and received by the WRC on 26 August 2025 was unsigned and undated.

In the course of the hearing, the Complainant accepted that she could not produce any documentary evidence demonstrating that the Form ES.1 had been sent to the Respondent on 12 August 2025 or on any other date. The Complainant accepted that she had no proof of postage, no certificate of posting, no registered post receipt and no documentary evidence demonstrating service of the Form ES.1 upon the Respondent.

The Complainant further accepted that she could not recall the date upon which the Form ES.1 was allegedly sent and accepted that she had no proof that it had been sent on 12 August 2025 as recorded on the WRC complaint form.

The Complainant stated that she believed that she had notified the Respondent correctly and that the WRC complaint form and the Form ES.1 had been sent together by ordinary post.

I note that the copy Form ES.1 furnished to the WRC is unsigned and undated. I further note that the explanatory documentation accompanying the Form ES.1 expressly advises complainants to retain proof of postage and states that a copy of the Form ES.1 together with proof of postage should be furnished to the WRC.

The Respondent submitted that it had no record of receiving the Form ES.1.

I accept that the Complainant stated that she experiences memory difficulties arising from an acquired brain injury and I have taken that evidence into account carefully and sympathetically. However, the issue before me is not one of credibility but whether sufficient evidence has been adduced to establish, on balance, compliance with the statutory notification requirements.

While I accept that some latitude may properly be afforded to litigants in person, I am satisfied that the notification requirements contained in section 21 of the Acts constitute a statutory precondition to the bringing of a complaint.

Having regard to the totality of the evidence before me, including the unsigned and undated nature of the Form ES.1, the absence of any proof of postage or service, the absence of evidence establishing when the Form ES.1 was allegedly sent, the Respondent’s evidence that it has no record of receiving the Form ES.1, and the inconsistency between the chronology recorded in the WRC complaint form and the Complainant’s oral evidence, I am not satisfied that the Complainant has established compliance with the notification requirements contained in section 21(2) of the Acts prior to seeking redress.

Compliance with Section 21(4) of the Acts

Section 21(4) provides inter alia that the Director General of the WRC shall not investigate a complaint unless satisfied either that the respondent has replied to the notification or that at least one month has elapsed after the notification was sent.

I am satisfied that the statutory scheme clearly envisages that a respondent is to be afforded an opportunity to respond to the notification before a complaint proceeds to adjudication.

The Complainant stated in evidence that she believed that the WRC complaint form and the Form ES.1 had been sent together by ordinary post. The Complainant further referred to an email sent to the WRC on 24 August 2025 in which she indicated that both the WRC complaint form and the Form ES.1 had been sent to the Respondent. However, no copy of this email was produced by the Complainant at the hearing nor does it appear on the WRC file. I note, however, that no issue was raised by the Respondent in relation to the existence of this email.

Even if I were satisfied that the Form ES.1 had issued to the Respondent, which I am not, I am satisfied on the Complainant’s own evidence that the WRC complaint form and the Form ES.1 were sent at the same time. In those circumstances, I am satisfied that the Respondent was not afforded the statutory opportunity contemplated by section 21(4) of the Acts before the complaint was referred to the WRC.

Accordingly, I am satisfied that the requirements of section 21(4) of the Acts were not complied with.

Section 21(3) of the Acts

I have also considered whether it would be appropriate to exercise the discretion contained in section 21(3)(a)(ii) of the Acts.

I note that the discretion provided for under section 21(3)(a)(ii) is to be exercised only exceptionally. In Gaelscoil Thulach na nÓg v Fitzsimons-Markey (EET034), the Labour Court stated that exceptional circumstances are circumstances which are unusual, special or uncommon and not those routinely encountered.

No formal application was made by the Complainant seeking a direction pursuant to section 21(3) of the Acts. In any event, I heard no evidence capable of satisfying me that exceptional circumstances arise such as would justify disapplying the notification requirements contained in section 21 of the Acts.

In reaching this conclusion, I have taken into account the Complainant’s evidence that she could not establish when the Form ES.1 was allegedly sent to the Respondent and that she believed the WRC complaint form and the Form ES.1 had been sent together.

Conclusion on Preliminary Issue

Having regard to my findings in respect of sections 21(2) and 21(4) of the Acts, and having considered section 21(3) of the Acts, I find that the statutory preconditions to the investigation of this complaint were not met. Accordingly, I find that I do not have jurisdiction to investigate the substantive complaint.

For the reasons set out above, I find that the Complainant failed to comply with the notification requirements contained in section 21 of the Acts prior to seeking redress. Accordingly, I decide that I do not have jurisdiction to investigate the complaint.