ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001654

Complaint For Resolution .

Date of Adjudication Hearing: 11/08/2016

Workplace Relations Commission Equality Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 Section 25 of the Equal Status Act, 2000 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. As required under Section25 (1) of the Acts, and as part of my investigation a hearing took place on 11 August 2016.

Complainant’s Submission and Presentation:

The complainant submitted a complainant of discrimination under the Equal Status Acts 2000-2004 on 28 January 2016 on civil status grounds. The complainant submitted that she was a Health Care Assistant on a two year fixed term contract, employed at a Hospital of the respondent since November 2015. She had served her 6 week probationary period without incident.

In early January, 2016, the complainant received notification from the HR Dept. that the respondent was looking into her pre employment screening and some residual issues. The complainant was alarmed as she described that her Garda Vetting process was unblemished and she sought to rectify the issue. She was concerned at the reference to the possibility of her employment status being threatened and sought a meeting to address matters .On January 20^th, she made a complaint against the approach made to her on January 4^th, 2016 directly with her line manager who submitted the complaint to the HR Dept. . At this stage, the complainant had been on sick leave since January 13, 2016. The complainant also placed the CEO on notice of her complaint.

The complainant submitted her ES1 form on January 28^th, wherein, she sought access to her file, her Garda Vetting form and an opportunity to resolve matters. She did not receive a reply from the respondent. She then submitted her complaint seeking an investigation under the Equal Status Acts 2000-2004 in early February 2016.

The complainant became further distressed by her exclusion by the respondent from addressing the issue. She made a parallel claim to the WRC on bullying and harassment. The complainant notified the respondent of her intention in resign her position in March 2016.

The respondent wrote to her on 24^th March, 2016 seeking to address issues and offering an explanation for the January 4^th intervention by the HR Dept. The respondent contended that there were still unresolved issues regarding a previous court appearance, but in light of the complainant’s intention to resign, the matters would not be progressed by the respondent.

The complainant responded to this communication within 30 minutes , conveying a key point that it was very important for the complainant to be heard and understood by the respondent that there were no residual issues on her Garda Vetting process. No further progress was made on this and the complainant formally resigned her position on April 17, 2016

“I would settle for a sit down meeting with HR, as stated to clear my name, but this wish appears to be ignored at every attempt”

She read and considered the respondent response to the claim in early August and submitted the following points:

• The complainant waited 7 months for access to requested documentation.
• She had lost out on 18 months of her contract through being compelled to resign.
• In response to the request by the respondent that the WRC dismiss the claim as it was not submitted under the correct legislation, the complainant sought that her case be heard.

At the hearing, the complainant reaffirmed the distress she had felt since the events of early January 2016 and her contention that she had been actively excluded from resolving the matter directly with the respondent. All she wanted to achieve was an acknowledgement from the respondent that there were no residual issues to her Garda clearance and she saw the current impasse as impeding her ability to secure an employment reference to move on with her plans for a new career move on 5^th September . She wanted to sit down and discuss the issues.

Respondent’s Submission and Presentation:

The respondent denied all claims submitted by the complainant under the Equal Status Act. On the complainants ES1 form, there was no reference to a ground associate with the complaint. The link to civil status on the WRC complaint form took them by surprise as the respondent was unaware of the civil status of the complainant.

The respondent sought that the claim be dismissed in advance of the hearing on “misconceived” grounds as provided for in Section 22(1) of the Acts.

“It is respectfully submitted that the WRC does not have jurisdiction to deal with claims under the Equal Status Acts in circumstances where the complainant is a former employee and not a service user “

The respondent submitted that the Equal Status Act was not the correct avenue, given the employee status of the complainant at the time of the complaint.

They submitted case law in support of the contention.

John and Angela Mongans and children v Clare County Council DEC S2008-039

Fitzgerald v Minister for Community Equality and Gaeltacht affairs [2011] IEHC 180

Fay v Tegral Pipes ltd [2005] 2 IR 261

Mr A v A Bank DEC S 2015-002

ADJ 00000542

The respondent reaffirmed that the complainant’s complaint was misconceived in law and was not properly before the WRC.

During the course of the hearing, the respondent disputed the complainant’s recollection of the sequence of events.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Issues for Decision:

I must decide whether the claim as lodged by the complainant can succeed on jurisdictional grounds.

Legislation involved and requirements of legislation: Equal Status Acts 2000-2004

Disposal of goods and provision of services.

5

5. —(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Dismissal of claims.

22

2. —(1) The Director of the Workplace Relations Commission may dismiss a claim at any stage if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter.

(2) Not later than 42 days after the Director of the Workplace Relations Commission dismisses a claim under this section, the complainant may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(3) On appeal the Court may affirm or quash the decision.

(4) No further appeal lies, other than an appeal to the High Court on a point of law.

Decision:

I have read and considered both submissions, oral and written from the parties. The complainant opened her entire case to the hearing. The respondent sought to address the preliminary point of jurisdiction in the first instance. I believed it important to allow both parties to present their case to a hearing to allow me to assess the arguments prior to making a decision .

It was common case that the complainant held employment status at the respondent hospital at the time of the complaint. This is evidenced by a written contract and the fact that the complainant received a small amount of paid sick leave. I found that there was a record of considerable conflict between the parties which emanated from the Garda Clearance issue , pertaining to employment .

The parameters of the Equal Status Act are set down in section 5 of the Act, cited above and refer to the provision of “goods and services”. The issue placed before me was a residual matter applicable to the fall out from a letter received by the complainant from the Group Director of HR on January 4^th 2016, essentially , a matter of employment .

In line with Mr A v A Bank, I find that the matter ought to have been investigated under the Employment Equality Acts 1998-2011. The core issue in this case is outside the remit of the Equal Status Acts.

During the course of the hearing, I asked the parties to comment on the jurisdiction argument. The complainant stated that she would reactivate the complaint under the correct Act, but what she really wanted was to engage with the respondent to resolve the issues.

I addressed the respondent for their comments and whether they wished to consider allowing the claim to proceed under the Employment Equality Acts as referenced by the complainant. They had no wish to do this given their stated position on the “ misconceive status “ of the instant claim but did agree to meet with the complainant within a 21 day period to seek to resolve the residual issues between them in everyone’s best interests .

I find, pursuant to Section 22(1) of the Equal Status Acts, that the within complaint was brought under the wrong statute and is therefore a matter of misconceived jurisdiction, and that I do not hold the jurisdiction to investigate the matter. Therefore, I dismiss the claim on that ground alone.

Dated:   2^nd September 2016