Complainant

Respondent

Parties

Dean  Murphy

The Department of Social Protection

Representatives

Lucy Dwyer B.L. instruction by Eileen Burke Chief State Solicitors Office

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00075747-001

25/09/2025

The complaint was referred to the WRC on 25 September 2025. The Complainant alleges that he was subjected to discrimination contrary to the Acts. The Respondent denies the complaint and raised a number of preliminary objections.

The Complainant submitted that the Respondent had been aware for a prolonged period that he was dissatisfied with its conduct and decision-making processes. He stated that he had sent numerous emails and complaints to the Respondent and submitted that the Respondent was therefore on notice of his intention to pursue a complaint under the Acts.

The Complainant accepted at the hearing that he could not produce any documentary evidence demonstrating that an ES.1 notification form or equivalent notification had been sent to the Respondent on 23 June 2025, being the date identified in the complaint form submitted to the WRC. During the hearing, the Complainant was afforded an opportunity to examine his email records and subsequently accepted that he could locate no evidence of any ES.1 notification having issued on that date. The Complainant accepted that the earliest date upon which an ES.1 notification was sent to the Respondent was 25 September 2025.

The Complainant did not identify any specific email or document upon which he relied as constituting notification for the purposes of section 21 of the Acts. During the hearing, the Respondent referred to a letter received through its complaints unit which the Respondent suggested may have been the correspondence to which the Complainant was referring. The contents of that correspondence were read at the hearing. Following the correspondence being read, the Complainant stated that it “sounds like something I sent”.

The Respondent denied the complaint and raised a number of preliminary objections, including objections concerning compliance with section 21 of the Acts. As the issue of compliance with section 21 concerns the jurisdiction of the WRC to investigate the complaint, the Respondent made submissions on that issue first.

The Respondent submitted that the Complainant failed to comply with the mandatory notification requirements contained in sections 21(2) and 21(4) of the Acts and that, consequently, the WRC lacks jurisdiction to investigate the complaint.

The Respondent submitted that it had never received any ES.1 notification dated 23 June 2025 and that the Complainant had failed to produce any evidence establishing that such notification issued.

The Respondent further submitted that the complaint form was referred to the WRC before any ES.1 notification was furnished to the Respondent. The Respondent clarified that the only ES.1 notification it received was an email sent by the Complainant on 25 September 2025 at 14:28, subject: Equal Status Complaint Form (ES1) – Dean Murphy – XXXXXXXX, which was sent after the WRC complaint form had already been referred to the WRC.

The Respondent accepted that various complaints and correspondence had been received from the Complainant over time and referred at the hearing to one email received through its complaints unit. The Respondent submitted that, while the Complainant may have referred in various communications to a range of legal matters, including aspects of the Acts, the particular correspondence referred to at the hearing referred generally to matters such as fair procedures and natural justice and did not constitute notification compliant with section 21 of the Acts.

The Respondent relied upon the decisions in Nadine Lattimore v Mr Cuisine Limited (ADJ-00056166), Kiara Byrne v Flutter Entertainment Plc (ADJ-00060166) and Seif Elmughrabi v WeWork (ADJ-00055942) in support of its position that compliance with section 21 of the Acts is mandatory and jurisdictional in nature.

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 and on behalf of 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 objections 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 ES.1 form on 23 June 2025. However, the Respondent denied ever receiving any such notification and submitted that no ES.1 form or equivalent notification dated 23 June 2025 had been furnished either to it or to the WRC.

At the commencement of the hearing, the Complainant accepted that he could not produce any documentary evidence demonstrating that an ES.1 form or notification had been sent on 23 June 2025. During the hearing, the Complainant was afforded an opportunity to examine his email records for the purpose of identifying any such notification. Having done so, he confirmed that he could locate no record of an ES.1 form or notification having issued on 23 June 2025 and accepted that the earliest date upon which any ES.1 notification was sent to the Respondent was 25 September 2025.

The Complainant submitted that the Respondent was nonetheless aware of his grievances and concerns because he had sent numerous emails and complaints over a prolonged period. The Respondent accepted that various correspondence had been received from the Complainant and referred at the hearing to one particular email generated through its complaints process which the Complainant stated “sounds like something I sent”.

I am not satisfied that the correspondence opened at the hearing constituted notification compliant with section 21(2) of the Acts.

The particular correspondence referred to at the hearing did not refer to the Acts, discrimination, prohibited conduct, or to an intention to seek redress under the Acts. Rather, it referred generally to matters such as fair procedures and natural justice. While I accept that the Respondent may have been aware that the Complainant was dissatisfied with aspects of its processes and decision-making, I am satisfied that this falls short of the statutory notification contemplated by section 21(2) of the Acts.

I am satisfied on the evidence that no ES.1 notification issued on 23 June 2025 notwithstanding the date inserted on the WRC complaint form. I further find that the earliest notification furnished to the Respondent pursuant to section 21 of the Acts was sent on 25 September 2025, after the Complainant had referred the within complaint to the WRC.

In those circumstances, I am satisfied that the Complainant did not comply with the mandatory notification requirements contained in section 21(2) of the Acts before seeking redress.

Compliance with Section 21(4) of the Acts

The evidence before me establishes that the complaint form was submitted to the WRC on 25 September 2025 and that the ES.1 notification form was subsequently emailed to the Respondent later on the same date.

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 language employed in section 21 of the Acts is mandatory in nature. 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.

In the present case, the complaint was referred to the WRC before the Respondent was notified pursuant to section 21 of the Acts and plainly before the expiration of the one-month period prescribed by section 21(4) of the Acts.

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 that the Complainant accepted during the hearing that he could not identify any ES.1 notification or equivalent correspondence sent prior to 25 September 2025 and that the Respondent was therefore not afforded the statutory opportunity contemplated by section 21 of the Acts before the complaint was referred to the WRC.

Conclusion on Preliminary Issue

I note the authorities opened by the Respondent, including Nadine Lattimore v Mr Cuisine Limited (ADJ-00056166), Kiara Byrne v Flutter Entertainment Plc (ADJ-00060166) and Seif Elmughrabi v WeWork (ADJ-00055942), in which it was held that non-compliance with section 21 of the Acts deprived the WRC of jurisdiction to investigate the complaints concerned. I find those decisions persuasive in circumstances analogous to the present case.

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 mandatory 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.