ADJ-00013815

Complainant

Respondent

Anonymised Parties

A Service User

A Resource Centre

Representatives

The Complainant attended in person and was not represented

Philip O’Sullivan & Co. Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00018128-001

23/03/2018

The Complainant is deaf and is a user of the Respondent’s services. The Complainant claims that he was subjected to discrimination by association contrary to Section 3(1)(b) of the Equal Status Acts in relation to a number of incidents that occurred involving the Respondent’s Manager in March, 2017, May, 2017 and October, 2017. The Complainant also claims that he was subjected to victimisation by the Respondent contrary to Section 3(2)(j) of the Acts. The Respondent disputes the Complainant’s claims of discrimination and victimisation.

The Complainant is deaf and is a user of the Respondent’s services. The Complainant’s partner is employed by the Respondent and has referred a complaint to the WRC under equality legislation in relation to alleged workplace bullying. The Complainant claims that he was subjected to discrimination by association and victimisation by the Respondent’s Manager as a result of his partner having made this complaint against her employer.

The Complainant claims that he was subjected to discrimination and victimisation by the Respondent on three separate occasions. The Complainant contends that the first incident occurred on 21 March, 2017 when he attended the Respondent’s premises to talk to the Manager. The Complainant claims that he was instructed by the Manager on this occasion that he should not attempt to talk to him anymore and that he should instead consult with the administrative staff in the Centre. The Complainant contends that he was taken aback by the attitude of the Manager on this occasion and claims that this treatment was directly attributable to the complaint which had been made by his partner.

The Complainant contends that the second incident occurred in May, 2017 when he went into the Centre to purchase hearing aid batteries for his partner. The Complainant claims that the Manager was present in the Centre on this occasion and observed him entering the premises. The Complainant stated that the set of batteries are normally available for purchase at a reduced price of €20 for service users of the Centre. However, the person on duty in the Centre attempted to overcharge him by €10 for the batteries on this occasion. The Complainant claims that it was only after he had complained about being overcharged that he was refunded the €10.

The Complainant contends that the third incident occurred on 22 October, 2017 on the street outside of a retail store in the town where the Respondent’s Centre is located. The Complainant, who was accompanied by his son, came out of the store and met the Respondent’s Manager and his partner on the street. The Complainant claims that he greeted the Manager and introduced his son, but the Manager was aggressive and treated him terribly which was very embarrassing in front of his son.

The Complainant contends that since the third incident on 22 October, 2017 he does not feel welcome to drop into his local Resource Centre anymore as a result of the Manager’s bullying words, negative actions and behaviour towards him. The Complainant is a qualified Irish Sign Language tutor and claims that he has been excluded from tuition opportunities by the Respondent for more than a year.

The Complainant claims that this victimisation and discrimination by association has occurred as a result of the workplace discrimination by the Respondent’s Manager against his partner and the proceedings which she has initiated under the equality legislation.

The Respondent totally refutes the Complainant’s claims of discrimination and victimisation.

The Respondent’s Manager gave detailed evidence at the oral hearing in response to the incidents of discrimination and victimisation which the Complainant has alleged to have occurred on 21 March, 2017, in May, 2017 and 22 October, 2017.

The Respondent’s Manager stated that he was upstairs in his office in the Centre on 21 March, 2017 when he was informed by a staff member that the Complainant wanted to talk to him. The Manager went downstairs to meet the Complainant who indicated that he wished to talk about an incident that had occurred involving his partner in the workplace the previous week. The Complainant’s partner was employed by the Respondent and she had made a complaint about the Manager to the HSE, so the Manager informed the Complainant that it would not be appropriate for him to discuss this matter in the circumstances. The Manager informed the Complainant that he would have to “draw a line professionally” but assured him that there were four other staff members in the Centre who would be able to assist him in availing of any of the Respondent’s services.

The Respondent’s Manager was present in the Centre on a date in May, 2017 when the Complainant attended to purchase hearing aid batteries for his partner. The set of batteries normally costs €30 but there is a discretionary discount of €10 available to service users of the Centre on request. The Complainant was attended by another staff member on this occasion who inadvertently omitted to allow the Complainant the discretionary discount of €10. When the staff member brought this fact the to the attention of the Manager he immediately instructed her to refund the Complainant the €10 discount for the batteries. The Manager stated that the Complainant did not make any complaint about this issue on the date in question, and therefore, did not consider that there was any need for an apology at the material time in question.

The Respondent’s Manager and his partner were outside of a retail store on a busy street on Sunday afternoon, 22 October, 2017, when the Complainant approached them and attempted to initiate a conversation. The Manager stated that he did not have any desire to speak to the Complainant in his personal time at that juncture especially in light of fact that the Complainant had been making disparaging remarks about him to third parties. The Manager stated that the interaction with the Complainant lasted less than a minute on this occasion and at no stage was he rude or aggressive towards him. The Manager stated that he acted in a courteous, professional and impartial manner in his interaction with the Complainant on this date.

The Manager contends that his interaction with the Complainant in relation to any of these incidents could not reasonably be construed as amounting to discrimination or victimisation contrary to the Equal Status Acts.

Jurisdictional Issue

The Respondent raised a preliminary objection in relation to the jurisdiction of the Director General of the WRC to investigate the instant complaint on the grounds that it does not comply with the relevant time limits provided for in Section 21 of the Equal Status Acts.

Section 21 of the Acts make provision for the relevant time limits for the notification and referral of complaints by a person who intends to seek redress under the Acts in relation to an alleged incident(s) of prohibited conduct.

Section 21(2)(a) of the Acts provides that before seeking redress under the Acts, a Complainant shall “…within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence”, notify the Respondent in writing of the nature of the allegations and of the Complainant’s intention, if not satisfied with the response, to seek redress under the Acts. Section 21(3)(a) provides that this may be extended for reasonable cause up to a period of four months or exceptionally, the notification requirement may be dispensed with where fair and reasonable. Section 21(6) then requires a complaint to be brought within six months “…from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.”

The Respondent contends that the most recent occurrence of the discrimination in the instant case is alleged to have occurred on 22 October, 2017. The Respondent submits that the notification form (Form ES.1) in relation to this alleged act of discrimination and the other two previous alleged acts of discrimination was sent to the Manager of the Centre on 15 March, 2018. The Respondent contends that the notification was not received within the statutory period of two months or the extended period of four months of the last occurrence of the alleged prohibited conduct. The Respondent submits, therefore, that the Complainant has failed to comply with the relevant notification requirements set out in Section 21(2) of the Acts prior to the referral of the complaint to the WRC on 23 March, 2018. The Respondent further contends that there are no exceptional circumstances in the instant case which would justify a direction that the notification requirements should not apply in accordance with the provisions of Section 21(3)(a)(ii) of the Acts.

The Complainant does not dispute the fact that he has failed to notify the Respondent of the alleged prohibited conduct within either the two-month period provided for in Section 21(2)(a) or the extended period of four months provided for in Section 21(3)(a) of the Acts.

However, the Complainant sought a direction that the notification requirements should be dispensed with in accordance with the provisions of Section 21(3)(a)(ii) of the Acts. The Complainant contends that the reason he failed to comply with the notification requirements was due to the fact that he was preoccupied with his partner’s alleged workplace bullying incidents involving the Respondent. The Complainant contends that it was only when he met with his partner’s solicitor in February, 2018 and told her of the treatment to which he had been subjected by the Respondent that he was advised that this amounted to prohibited conduct under the Equal Status Acts.

Section 21(3)(a)(ii) of the Acts provides that the Director General may “exceptionally, where satisfied that it is fair and reasonable in the circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complainant”. In order to grant a direction under this provision, I must be satisfied that the case is an exceptional one and that it is fair and reasonable to dispense with the notification requirements made by the Acts. In coming to that decision, I am required by section 21(3)(b) to take into account the extent to which the Respondent is or is likely to be aware of the circumstances and the extent of any risk of prejudice to the Respondent’s ability to deal adequately with the complaint.

Having regard to the totality of the evidence adduced, I find that I cannot justify dispensing with the notification requirement in the circumstances of the instant case. I am satisfied that the Complainant has not established that there were exceptional circumstances that both justify and explain the delay in notifying the Respondent of the alleged discrimination. I am satisfied that the circumstances surrounding the serving of notification on the Respondent do not amount to ‘exceptional’ circumstances. I am, therefore, not empowered under the Acts to dispense with the notification requirement. Furthermore, I am satisfied that the notification requirements set out in Section 21(2) of the Acts, were not complied with, and accordingly, I find that I do not have jurisdiction to investigate the within complaint.

Having investigated the above complaint, I hereby make the following decision in accordance with Section 25(4) of the Equal Status Acts. I find that the Complainant has failed to comply with the notification requirements set out in Section 21 of the Acts. Accordingly, I find that I do not have jurisdiction to investigate the instant complaint.

Equal Status Acts – Section 3(1)(b) - Discrimination by Association – Section 3(1)(j) - Victimisation –Section 21 - Notification Requirements – No Jurisdiction