Adjudication Reference: ADJ-00005333
Parties:
| Complainant | Respondent |
Anonymised Parties | Health Worker | Health Services Provider |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00006905-001 | 09/09/2016 |
Date of Adjudication Hearing: 04/10/2017
Procedure:
In accordance with 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.
Background:
The dispute concerns a complaint made by Mr. X that he/it was discriminated against by the Respondent, the Nursing and Midwifery Board of Ireland (NMBI) on the race ground in terms of Sections 3(1)(a) and 3(2)(h) of the Equal Status Acts, 2000-2016, in not being provided with a service contrary to Section 5(1) of the Equal Status Acts, 2000-2016. |
Preliminary Issue: Jurisdiction:
At the outset of the hearing the Respondent raised the matter of locus standi of the Complainant to bring this case. It is the Respondent's contention that it is clear from the Complaint Form and the E.S.1 Form that the proceedings have been brought in the name of the Complainant only in name and that he is not the correct Complainant as he is not captured by section 21 and 38A of the Acts.
In this regard, the Respondent believes the proceedings are misconceived and there is no standing of the Complainant and his company to maintain the proceedings. According to the Respondent if any discriminatory act occurred, which is denied, then this arises in respect of the company which is not a person who can maintain a claim under the Acts.
The Respondent submits that it has been clearly established in the decision of Gloria (Ireland's Lesbian and Gay Choir) v Cork International Choral Festival (Dec-S2008-078) that a claim of breach of the Acts cannot be maintained by an organisation, public body, unincorporated association or any entity. The Respondent believes the complaint should be rejected and dismissed on that basis.
In the Respondent's view that, relying primarily on the Complainant's own written submissions, the Complainant has clearly adopted the approach that it is the business of his company , which has lodged the complaint to the Workplace Relations Commission and has no locus standi to lodge such a complaint under Section 21 of the Act as it is a company and not an individual person.
In relation to the matter of jurisdiction the Complainant put forward that in their dealings with him the health service provider had never distinguished between him and his company . In his view he had been dealt with as an individual by the provider. They had excluded him as an individual and wondered why they had taken so long to respond to him.
Conclusions Regarding the issue of Jurisdiction:
It is clear to me from the Complaint Form submitted by the Complainant to the Workplace Relations Commission and in his E.S.1 Form that this complaint was made on behalf his company.
In the section of the Complaint Form, Complaint Specific Details or Statement, the narrative includes, inter alia, the phrases; " Mr X owns a house in Ireland and we use it as a forwarding address", "As from December 2015 we have been registering nurses….using our Irish address", "she could not use our Irish address as we were not licensed", "this has been a tremendous blow on our company", and "some have opted to move agencies to other agencies." On the E.S.1 Form, the name of the Complainant is given as, his company name. A question is inserted in the Form which reads, "Why is the name of his company not allowed to use its address for communication on behalf of nurses."
Nothing was brought forward at the hearing to support the notion that the complaint was made on behalf of an individual.
The matter of who may make a complaint under the Act is comprehensively covered in Gay V case (DEC-S2008-078). In this case the Equality Officer concluded that:
"Having regard to the foregoing, I am of the view that the Equal Status Acts should be interpreted as limiting complainants to individuals. Whilst the term “person” is usually interpreted broadly to include corporate and unincorporated bodies, I am satisfied that a contrary intention is evident from the Equal Status Acts given the manner in which the discriminatory grounds are set out and the particular definition of “person” as contained in the Acts. I am therefore of the view that the legislative intent in this regard was to protect individuals and not bodies from discrimination. "
I agree with the Equality Officer's interpretation and as such I do not believe I have jurisdiction to hear this complaint as it was not taken by an individual.
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
On the basis of the foregoing, I find that the Complainant in the instant case does not have the locus standi to make a complaint under the Equal Status Acts, 2000-2016 and accordingly, I find that I do not have jurisdiction in relation to the substantive complaint of discrimination on the race ground contrary to the terms of the Equal Status Acts, 2000-2016.
Dated: 29 November 2017
Key Words:
Jurisdiction, individual, locus standi |