A Male Complainant (Represented by MANDATE) AND A Bar & Restaurant (Represented by John F Flannery & Associates)
1. DISPUTE
1.1 The dispute concerns a claim that the respondent discriminated against the complainant on the grounds of his sexual orientation contrary to the provisions of the Employment Equality Act, 1998 when his partner was refused entry at the establishment. This decision concerns the matter of the time limit for the request for a resumption of the investigation following the failure of the parties to resolve the dispute at mediation.
2. BACKGROUND
2.1 The complainant, who is homosexual, commenced employment at the bar on 22nd January, 2001. Some three weeks later he states that he was informed by management that his partner would not be welcome at the bar. The respondent states that the reason for this decision was that the complainant was constantly engaged in conversation with his partner when he was at the bar to the detriment of his duties. The complainant believes that the reason his partner was not allowed at the bar was that they were homosexual and contends that heterosexual employees were not treated in this manner.
2.2 The complainant referred a complaint to the Director of Equality Investigations on 11th May, 2001. In accordance with her powers under section 75 of the 1998 Act, the Director delegated the case to Raymund Walsh, an Equality Officer, on 22nd May, 2001 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Act. The parties subsequently agreed to attempt to resolve the dispute at mediation and the Director referred the complaint to mediation on 19th June, 2001. The Head of Mediation issued notices to the parties on 4th December, 2001 confirming that the dispute had not been resolved at mediation and advised the Equality Officer accordingly.
2.3 I informed the parties by letter on 19th December, 2001 that I had received the above notification from the Head of Mediation and that I was continuing with the investigation. Section 78 of the 1998 states :
(6) If after
(a) a case has been referred to an equality mediation officer under subsection (1) or (2)(b),
or
(b) the Labour Court has attempted to resolve a case under subsection (2)(a),
it appears to the equality mediation officer or, as the case may be, the Labour Court that the case cannot be resolved by mediation, that officer or that Court shall issue a notice to that effect to the complainant and the respondent.
(7) Where
(a) a notice has been issued under subsection (6) with respect to a case,
(b) within 28 days from the issue of that notice the complainant makes an application to the
Director or, as the case may be, the Labour Court for the resumption of the hearing of the case, and
(c) if the notice was issued by an equality mediation officer, a copy of that notice accompanies the application under paragraph (b),
the Director or the Labour Court, as the case may require, shall proceed or, as the case may be, continue to deal with the case under section 79.
I noted that at no point within the 28 day period from 4th December, 2001 when the notices issued to the 31st December, 2001, had the Director received an application for the resumption of the hearing of the case from the complainant. When this matter was raised with MANDATE, the union faxed to the Head of Employment Equality, on 14th January, 2002, a copy of a letter dated 14th December, 2001 which was addressed to the Director and requesting a resumption of the hearing of the case. As there was no evidence available to the Equality Officer that this request had indeed issued to the Director within the statutory 28 day time limit the respondent was notified of the position. A preliminary hearing of the complaint was held on 12th November, 2002 to address the matter of my jurisdiction to hear the substantive complaint having regard to the date of the request for a resumption of the investigation.
3. MANDATE POSITION
3.1 The Union position is that it made a formal request to the Director for a resumption of the investigation on 14th December, 2001 and that when requested to do so, it faxed a copy of this request to the Head of Employment Equality on 14th January, 2002. The Union states that in view of the query from the Office of the Director of EqualityInvestigations as to the date of this letter, it asked a computer technician to examine the computer on which the letter was generated and to verify the date on which it was created. The Union furnished a copy of a printout of the 'document properties' from the computer which would indicate that the letter was created at 3.42 p.m. on 14th December, 2001 and last modified at 4.00 p.m. on the same date. The copy of the letter furnished by the Union is unsigned however the Union is satisfied that the letter did issue on that date. The Union states that it would be an injustice to the complainant if the complaint were to be ruled out of time on the basis that there was no evidence of the letter having been received at the Director's Office.
4. RESPONDENT'S POSITION
4.1 The respondent contends that there is no evidence of the letter requesting a resumption of the investigation having issued from MANDATE on the purported date. At the hearing the respondent said that it would look at the matter in a different light if there had been any evidence such as a register of outgoing post at the Union office however no such evidence was offered by the Union. The respondent attached no significance to the copy produced by the Union or to the information from the computer regarding the date on which the document was allegedly created. The respondent took the view that no request for a resumption was made within the statutory 28 day time limit and that the Equality Officer had no jurisdiction to hear the complaint.
5. CONCLUSIONS OF THE EQUALITY OFFICER
5.1 The matter to be addressed is whether or not MANDATE submitted a request to the Director for a resumption of the hearing of the case within 28 days of having been notified that the complaint could not be resolved at mediation in accordance with the provisions of Section 78(7) of the 1998 Act. I have considered all of the evidence, written and oral, made available to me by the parties to the case.
5.2 Having examined the evidence I must conclude that there is no evidence available to me from MANDATE, the postal service or the Director's Office or indeed any other source that the letter dated 14th December, 2001 from MANDATE to the Director issued prior to being faxed to the Head of Employment Equality on 14th January, 2002. The requirements of the Act state clearly that jurisdiction to re-open the investigation depends on an application being made within the specified time limit and the Act does not leave the Equality Officer any discretion in the matter. In those circumstances I must find that the Union request for a resumption of the hearing of the case is out of time.
6. DECISION
6.1 As I have concluded that the Union request for a resumption of the hearing of the case is out of time I find that I have no jurisdiction to hear the substantive complaint of discrimination on the sexual orientation ground contrary to the provisions of the
Employment Equality Act, 1998
Raymund Walsh,
Equality Officer
6 February, 2003