Complainant

Respondent

Parties

Tony O'Brien

SIPTU Union

Representatives

No Appearance by or on behalf of the complainant

Paul Henry, SIPTU Official

Act

Complaint Reference No.

Date of Receipt

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

CA-00010601-001

31/01/2017

The Complainant submitted a complaint to the WRC dated 31 January 2017. The Complainant referred to four named Operatives which took issue with a Meeting in December 2015. This underwent validation checks. On 3 April 2017, the complainant was requested to complete the complaint form fully.

The Complaint was resubmitted and received on 13 April 2017 and referred to a complaint of discrimination in providing goods and services. The questions on identifying grounds for the complaint were unpopulated. In addition, questions asked on the ES1 notification were addressed by “see note enclosed “.

The WRC endeavoured to obtain clarification from the complainant on 4 May 2017 by seeking the grounds for the complaint and the date of ES1 notification.

On 7 June 2017, the Complainant clarified that he had not received a response to the ES1 form. The Complainant submitted a copy of the ES1 form dated 25 May 2017.

The Respondent was notified of the Complaint on 12 July 2017.

The Case was set for hearing on May 20, 2019. On that day, the Respondent attended the hearing but there was no appearance on or behalf of the complainant and there was no follow up contact in explaining this non-appearance.

The Complainant submitted that he had experienced discrimination. He did not make a written submission to the WRC on the context and background to his claim.

He sent a copy of an ES1 form dated 25 May 2017, received by WRC on 7 June 2017. This referred to an event from December 2017. It was unclear what the complaint referred to.

On April 17, the Complainant was notified of the hearing of his case and invited to attend the scheduled hearing on 20 May 2019. There is no further communication from the complainant and no explanation to cover his non-attendance at the hearing.

The Respondent is a Trade Union and attended the Hearing on 20 May ,2019. The Respondent rebutted all claims by the Complainant and submitted that the WRC did not hold the jurisdiction to investigate the complaint lodged an extended period after the alleged prohibited conduct.

The Respondent submitted that by the complainant’s non-attendance, he could not satisfy the burden of proof necessary in the case. The Respondent  confirmed that the ES1 had been submitted in the aftermath of the initial complaint to the WRC.

The Respondent handed in a letter issued by the Union and directed to the complainant, dated July 3, 2017, by way of response to the ES1 form received which confirmed that the issues raised by the complainant had already been addressed in a report dated October 2016. The Respondent confirmed that the complainant had seen this report and the issues had been addressed. The Respondent outlined that the complainant had not been treated unlawfully.

The Respondent sought that the claim be dismissed as misconceived in accordance with Section 22 of the Act.

I have considered all aspects of this complaint, lodged first day on 31 January ,2017. The complaint was carefully validated and found to be lacking in required detail and the WRC made a genuine effort to obtain a fully populated complaint. It was unclear to me just what meaning the complainant wished to communicate in this case. The Complainant went on to make several adjustments to the claim form. However, it was still unclear just what the complaint referred to.

I would have liked to have met with the complainant.

Given the concerted efforts of the WRC to secure a viable complaint from the complainant, I have found that the complainant was disrespectful in not communicating that he had an issue with the invitation to hearing and in failing to make a personal appearance to assist in establishing whether the burden of proof has been met.

The Respondent travelled in a three-person delegation from Dublin and had prepared a detailed response to the claim. They were equally disappointed not to meet the complainant.

It became clear to me that the ES1 form had not been served on the Respondent within the statutory time limits provided for in Section 21 of the Act. The sole ES1 was received by the WRC on 7 June 2017 and contained a date of 25 May 2017, some 18 months post the dates of the prohibited conduct on 14 December 2015.

Section 21 of the Act explains the redress system for prohibited conduct under the Legislation.

21.— (1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission].

(1A) If the grounds for such a claim as is referred to in subsection (1) arise —

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11) , the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the ]Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(2) Before seeking redress under this section, the complainant —

(a) shall, within 2 months after the prohibited conducted 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 —

(I) the nature of the allegation,

(ii) the complainant’ s intention, if not satisfied with the respondent’ s response to the allegation, to seek redress under this Act,

and

(b) may in that notification, with a view to assisting the complainant in deciding whether to refer the case to the Director of the Workplace Relations Commission or the Circuit Court, question the respondent in writing so as to obtain material information and the respondent may, if the respondent so wishes, reply to any such questions.

(2A) For the purposes of subsection (2)the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(3) (a) On application by a complainant the Director of the Workplace Relations Commission or the Circuit Court may —

(I) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction,

and, where such a direction is given, this Part shall have effect accordingly.

  (b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or the Circuit Court shall have regard to all the relevant circumstances, including —

(I) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’ s ability to deal adequately with the complaint.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

The core components of this section have been condensed into a very practical user-friendly Guide to the Equal Status Acts for both the Complainant and Respondent, September 2017.

Section 21 requires the complainant in an Equal Status case to submit an ES1 notification form in advance of the first contact with the WRC. This is aimed at giving the Respondent an opportunity to resolve matters. I am satisfied that the ES1 was submitted in this case on the first occasion dated 25 May 2017, an extended period after the date of 14 December 2015, the date of the alleged prohibited conduct.

This complaint was referred to me for investigation. A hearing for that purpose was held on 20, May 2019. There was no appearance by or on behalf of the Complainant at the hearing. I am satisfied that the said complainant was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held.

I have not been able to hear from the complainant in the case. I have had a defined difficulty in comprehending the complaint before me.

The Complainant has not satisfied Section 21(2) (a) of the Act and no submissions were made on seeking an extension of time, which would in fact be a moot exercise in terms of time now passed.

I find that I have no option but to exercise my powers under Section 22(1) of the Act. Considering the absence of a correct in time prior notification of claim (ES1) served on the Respondent and the absence of the complainant at hearing to adduce evidence in his case, I must dismiss this case as misconceived.

Alleged prohibited Conduct.