EDA2524

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033815 (CA-00044679-001)

BACKGROUND:

The Worker appealed the decision of the WRC Adjudication Officer under Section 83 (1), Employment Equality Acts, 1998 to 2015 on 14 August 2022. A Labour Court hearing took place on 4 March 2025.

The following is the Determination of the Court.

DETERMINATION:

This is an appeal by Mr Alamazani (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00033815-CA-00044679-001 given under the Employment Equality Act 1998 (the Act) in a claim that he was discriminated against on a number of grounds by his employer Dunnes Stores Cornelscourt T/A Dunnes Stores (hereafter the Respondent).  The Adjudication Officer held that as the Complainant was provided with an opportunity to present his case and decided not to and left the hearing, he must find that the Complainant was not discriminated against and dismiss the complaint. The Adjudication Officer also noted in his decision that the Complainant had been requested on the following dates to provide a written submission and had failed to do so.

3 February 2021

25 May     2021

26 July     2021

27 July      2021

16 August 2021.

 The complaint was lodged with the WRC on 17 June 2021, therefore the reckonable period under the Act is 18 December 2020 to 17 June 2021.  The Adjudication Officer issued his decision on 4 July 2022 and the case was appealed to the Labour Court on 14 August 2022. There are eight linked cases ADE/22/62, ADE/22/61, ADE/22/68 , ADE/22/69 ADE/22/70, ADE/22/71, ADE/22/72, ADE/22/73.

 The Court had the following engagements with the Complainant.

 The Complainants appeal forms were received on 14 August 2022 at 23.44 and 15 August 2022 at 00.08. An acknowledgement letter issued from the Court on 16 August 2022 which indicated that his submissions in respect of all the cases he had appealed were due by 6th September 2022.

An email was received from the Complainant on 4 September 2022 at 22.20 seeking an extension of time to submit his submissions.  The Court granted an extension until 4 October 2022.

A further email was received from the Complainant on 8 September 2022 at 08.26 seeking a further extension for his submissions.  He was informed that his submissions were still due by 4 October 2022.

The Court emailed the Complainant on 28 October 2022 at 08.16 advising that his submissions were now overdue and that they should be furnished as soon as possible.

 The Court received an email from the Complainant on 9 January 2023 at 10.44 seeking a further extension for sending his submissions until March 23. The Court granted a final extension to make 6 February 2023 for him to make his submissions.

 The Court received a further email from the Complainant on 11 January 2023 at 11.48 seeking an extension to March 2023.  This was not granted, and he was reminded that his submissions were due on 6 February 2023.

 The next correspondence from the Complainant was an email on 4 April 2023 at 08.39 stating that he would not meet deadline. The Complainant was advised that no extension beyond 6 February 2023 had been granted in respect of his submission.

 In May 2024 the case was considered for strike out, it was decided by the Division on the basis that the Complainant had been engaging with the Court, albeit not sending in his submission, to send a final request for submission then proceed to schedule the cases for hearing even if submission was not received.

The Court wrote to the Complainant by email and letter and on 29 May 2024 advising that submissions were due no later than 19 June 2024.

 An email was received from the Complainant on 18 June 2024 at 13.03- requesting a one-week extension until 30 June 2024.  The Court advised no further extension would be granted and that his submissions were due by 19 June 2024.

The Respondent contacted the Court on 4 November 2024 enquiring as to the status of the case. The Court responded advising that it was the Court’s intention to proceed to hearing despite the fact the Complainant’s submissions had not been received and invited the Respondent to make submissions which were received on 19 December 20204. The Complainant was copied in on that correspondence.

 An email was received from the Complainant on 17 December 2024 at 19.50 requesting that someone from the Court ring him. The Court issued an email on 18 December 2024 advising that he should email in his query.

Notification of hearing date letters were issued by the Court on 28 January 2025, and the Complainants letter indicated that he should send in his submission immediately.

 On 11 February 2025 at 13.57 an email was received from the Complainant inquiring as to how he could request a postponement of the hearing.  On 14 February 2025 the Complainant submitted a request for a postponement of the scheduled hearing. By email of the same date the Complainant was advised that his postponement request had been refused and that the hearing would proceed as scheduled on 4 March 2025.

On 4 March 2025 at 9.15 am the Complainant called the Labour Court’s main office and was advised that the Court Secretary assigned to his case would call him back. The Court secretary returned his call at 9.21am. The Complainant stated that he was too sick to attend the hearing of his cases. The Complainant was informed by the Court secretary that unless the Court had a medical certificate in advance of the commencement of the hearing at 10.am the hearing would proceed as scheduled.

 The Court delayed the commencement of the hearing until 10.15am, at which time the Division entered the Court. The Respondent was present with their legal team and six witness the majority of who had been named by the Complainant in his complaints.  Mr Keany BL noting that the Court had delayed the commencement of the hearing and that the Complainant was still not present made an application that the Court should either strike out the case or declare that the appeal failed as the Complainant was not here to move his appeal in each of his nine cases.  Mr Keany BL noted that his client had gone to a lot of trouble and expense to have the six witnesses present. The Court opened the hearing into each of his nine complaints. As there was no one present to move the appeals the appeals failed.

In coming to the decision to proceed with the hearing the Court took into account the following,

1) The failure of the Complainant to make submission to the Court over a protracted period despite being granted multiple extensions of time to do so.

2) The fact that what was required in the submissions was for the Complainant to set out his issues and therefore it was material that he was eminently familiar with and no reasonable grounds for not being able to do so were ever put forward. 

3) Despite multiple engagements with the Court, the Court could see no real intention on the part of the Complainant to have the matters heard and decided on.

4) The Complainant provided no details in relation to ‘sickness’ that prevented him from attending the hearing.

5)  That the requirement for fairness and equity must apply to both parties.

 To this end the Court considered the following obiter comments from Barrett J in David Mc Cormack and Ashford Castle Hotel Ltd [2022] IEHC 188 at paragraph 17.

“Mr Lawless touches on an important point in this regard. Courts too have a tendency to be more lenient with self-represented litigants than other litigants. However, a question does arise as to whether such systemic indulgence is always entirely fair to the parties who are not shown such indulgence. Justice has to be done in an even-handed manner; certainly, the extension of any indulgence in any one case has to be carefully weighed by a court, or other decision-making body minded to extend such indulgence, against any time and /or financial and /or costs that it raises for the other side in proceedings, not least in ensuring that proceedings are brought to a conclusion in as timely a manner as justice allows”.

 The Court having considered all of the above did not believe that justice would be served by postponing the hearing. The Court decided to proceed with the hearing as scheduled. The Complainant was not present to move his appeal therefore the appeal falls.

On 11 March 2025 the Court received a medical note from the Complainant which stated that he was unwell on 4 March 2025 and attended their clinic. It did not say that he was unfit to attend a hearing on his cases on that day.

Determination.

 The Complainant was not present to move his appeal. The Complainant’s appeal fails. The decision of the  Adjudication Officer is upheld.

The  Court so determines.     

	Signed on behalf of the Labour Court
	Louise O'Donnell
FC	______________________
20th March 2025	Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Fiona Corcoran, Court Secretary.