ADJ-00021088

Complainant

Respondent

Parties

Sibusisiwe Bulala Kelly

Deutsche Lufthansa Aktiengesellschaft.

Representatives

Augustus Cullen Law

Tughans

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027719-001

14/04/2019

The first hearing on the 18 /8/2019 was adjourned as the respondent had not been notified at the correct address in Germany.

Hearing on   9/12/2019.

The complainant is a Zimbabwean- born, Irish citizen, living in Ireland since 2000.She claims that she was discriminated against on the grounds of race when the respondent intercepted her passage onto a flight in Frankfurt Airport on the 8 December 2018 and treated her differently to other passengers of a different colour. In front of all other passengers set to board the flight, she was subject to extra scrutiny, required to provide, in addition to her passport and boarding card, evidence of identity . She was told by the respondent’s employee that she” did not look like a typical Irish person”. Ultimately and after everyone else had boarded, she was allowed to board.

She submitted her complaint to the WRC on 14 April 2019.

The respondent’s correct title is Deutsche Lufthansa Aktiengesellschaft,with an address in Venloer Straße 151-153, 50672 Cologne, Germany.

The respondent agreed to the request to correct the title. This is reflected in the decision.

The respondent raised 3 jurisdictional points.

Section 46 of the Equal Status Act 2000-2015 deprives the WRC of jurisdiction to hear the complaint.

The complainant has failed to identify the correct respondent.

The complainant has failed to comply with the requirements of Section 21(2) of Equal Status Act 2000-2015 .

Section 46 of the Act deprives the WRC of jurisdiction to hear the complaint.

The respondent contends that the provisions of Section 46 apply to prohibited conduct which occurs outside Ireland, but only in circumstances involving a plane or aircraft registered in Ireland. The aircraft which the complainant was attempting to board in Frankfurt Airport was not registered in Ireland. It was registered in Germany. The respondent contends , that should the Act of 2000 as amended have otherwise been intended to apply to prohibited conduct which occurred outside Ireland, the Oireachtas would have made such provision within the Act on a breach of a specific, separate statutory duty of non-discrimination. Section 46 refers to aircraft only.

The incident which forms the subject of these proceedings took place in Germany. The complainant is domiciled/resides in Ireland. The respondent is a multinational organisation with its principal place of business in Cologne, Germany. It does not have a registered place of business in Ireland.

German courts are the appropriate place to deal with this complaint. There is no provision under the Equal Status Act to issue proceedings in the Republic concerning a matter that occurred in Germany.

Additional points concerning territorial jurisdiction.

Inadmissibility of consumer contracts.

The respondent refers to the complainant’s contention that consumer contracts by virtue of the Consumer Rights Directive 2011/83/EU, enjoy the protection of the Equal Status Act of 2000, section 46 of the Act notwithstanding. The respondent states that said Act, as amended, does not have jurisdiction to deal with such complaints but has jurisdiction to deal with   complaints based on the inequitable access to goods and services. The respondent notes that the complainant has submitted an excerpt from “Jurisdiction over consumer contracts” written by Dr.Jens Kleinschmidt and submits as follows:

The WRC does not have jurisdiction to deal with claims arising under the Consumer Sales Directive 1999/44/EC., the Consumer Rights Directive 2011/83/EU, the Consumer Alternative Dispute Resolution Directive 2013/11/EU, or claims arising under national consumer rights legislation. Where properly brought, it is accepted that such proceedings may be commenced either before the courts of the Member State in which the defendant is domiciled or where the consumer is domiciled.

Contrary to the complaint’s submission,there is no provision under the Brussels Regulation allowing special jurisdiction for discrimination. Articles 17 to 19 of the Brussels Regulation, cited by the complainant as grounding her entitlement to make a complaint deal with “matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession” (i.e. consumer contracts) only. Article 25(4) of the Brussels Regulation governing contracts concerns agreements relating to trust instruments and wills and has no relevance to these proceedings.

As the alleged discrimination was perpetrated in Frankfurt Airport, the WRC does not have jurisdiction to hear claims under a consumer contract.

Article 4 of the Brussels Regulation.

The general position in EU law is that a defendant should be sued in their country of domicile. Article 4 of the Brussels Regulation states that

“Persons domiciled in a Member State shall… be sued in the courts of that Member State”. The Respondent is domiciled in Germany. Importantly, Regulation 15 of the Brussels Regulation states that

“the rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the Defendant’s domicile.”

Under the Brussels Regulation, there are only certain circumstances in which a defendant may be sued in the courts of a Member State other than that where it is domiciled. These are known as areas of “special” jurisdiction and include:

Article 7(1)) – the courts of the Member State in which performance of the contract occurred will have special jurisdiction. As these proceedings relate to performance of a contract for service between the complainant and the respondent, the issue of performance in question occurred in Germany and will be subject to the jurisdiction of German courts.

Application of the EU Charter of Fundamental Rights the ‘Charter’.

The respondent accepts that in particular circumstances, the Act of 2000-2015 may be the implementation in Ireland of Article 47 of the Charter ( guaranteeing an effect remedy for complainants), but the introduction of the Act does not automatically mean that the WRC has jurisdiction to hear the complainant’s allegations of discrimination which occurred in another member state. It is contended that the complainant whose cause of action arose in another member state, Germany, can still have an effective remedy to address the alleged prohibited conduct, but that such remedy does not lie before the WRC. It is noted that references in the Act refer to Irish bodies, departments and authorities, and confirm the investigatory and enforcement powers of the WRC, and references by the Irish Human Rights and Equality Commission. It is contended that the wording of the Act of 2000-2015 is such that its extent is to matters and allegations of prohibited conduct only within Ireland.

Remedies are available to the complainant. The complainant’s Boarding Pass bears the code “LH1283”. The respondent’s g general terms and conditions state that “For flights with the Lufthansa airline (code ‘LH’), Lufthansa is the contracting party and the General Conditions of Carriage (ABB) of Deutsche Lufthansa AG apply.” At Article 17, these General Conditions of Carriage provide a conciliation mechanism for passengers with complaints.

These General Conditions of Carriage clearly demonstrate that the correct governing law is German law. The European Commission also provides a platform for Online Dispute Resolution (ODR) that may be used to resolve complaints.

Direct Effect of the Race Directive

It is denied that the implementation of the Act of 2000-2015 and the subsequent jurisdiction of the WRC to deal only with allegations of prohibited conduct occurring in Ireland is in contravention of European legislation.

The complainant has failed to identify the correct respondent.

The person who halted her passage onto the plane at Frankfurt Airport was employed by a security company called Securitas. They are a third-party service provider to Frankfurt Airport Authority . They do not have a contract with Lufthansa. They are an agent of the Airport authority and not an agent of the respondent airline. Even before the complainant lodged the complaint,   the respondent advised the complainant that Securitas was the respondent.

Complainant has failed to comply with the requirements of Section 21(2) of Equal Status Act

Section 21(2) requires the complainant to notify a proposed respondent not only of the alleged discriminatory conduct, but also of her intention to seek redress under the Act for the alleged discrimination. The complainant’s email of 10 December failed to indicate that she was seeking redress under the statute. The Respondent therefore contends that in view of the Complainant’s failure to comply with the mandatory requirements set out in Section 21(2) of the Act of 2000-2015, the WRC does not have jurisdiction to accept this complaint.

Regarding the complainant’s contention that the respondent’s failure to contact her regarding their planned investigation and its contribution to the delay in submitting an ES.1 form, the respondent’s representative asked that no inference should be drawn from Lufthansa’ s failure to respond to the complainant’s request for an update on the status of her complaint. The then representative did not follow up and it is her responsibility and not Lufthansa’s. The respondent did investigate the complaint.

The respondent submits that there are no exceptional circumstances in the complainant’s case where it is fair and reasonable for the WRC to direct that Section 21(2) should not apply. At the time of issue of the Complaint Form in April 2019, the respondent had already advised the complainant of the involvement of a third party in the exchange on 8 December 2018: it was not aware of the complainant’s intention to seek redress against it, or the third party, at the time of their email in March 2019, or at all, prior to the Claim Form issued on 14 April 2019. Should the respondent have been advised by the complainant of her intention to issue proceedings, it may have been able to take steps to ensure the proper company was a party to the proceedings, and/or to advise the third party accordingly of threatened action. Indeed, the proceedings were issued without any notice to the respondent and the Claim Form was not served at the respondent’s place of business/domicile in Germany, prior to the first scheduled hearing of the matter in August 2019, or at all.

Accordingly, the respondent submits that these proceedings should not be accepted by the WRC

The respondent is not attempting to deny the claimant’s right to justice. The respondent is not denying what occurred or the effect it may have had on the complainant, but they must ensure that the correct procedures are employed in that endeavour and that the complaint is brought against the correct party. The correct respondent is Securitas. The complainant did board the flight.

The respondent asks the adjudicator to accept their claim that the WRC does not have jurisdiction to hear the complaint.

The respondent accepted the complainant’s request to correct the respondent’s name

Complainant’s response to jurisdictional points.

Section 46 of the Equal Status Act 2000-2015 deprives the WRC of jurisdiction to hear the complaint.

The complainant cites case law in support of the complainant’s claim that the WRC does have jurisdiction to hear her complaint. The complainant purchased her airline ticket online in Dublin to fly Dublin-Frankfurt- Athens return. The complainant relies on her entitlement to proceed in her Member State of Residence pursuant to Brussels 1, and the Judgment of the Court (Eighth Chamber), 14 November 2013, Armin Maletic and Marianne Maletic v lastminute.com Gmbh and TUI Österreich GmbH,Case C 478/12. This concerned acontract for travel concluded between a consumer domiciled in one Member State and a travel agency established in another Member State. The court held that the consumer was entitled to bring an action in the place of his domicile against a travel agency in another member state.

The act of discrimination   complained of by the complainant is racial profiling where she alone out of a line of passengers, set to depart from Frankfort to Dublin, was treated less favourably than passengers of a different colour when she was plucked out and delayed because of her colour. The complainant’s representative refers to the European Union Agency For fundamental Rights document, Preventing Unlawful profiling today and in the future; a guide” which states that

“Protected characteristics such as Race ….. can be among the factors that law enforcement authorities or border guards can take into account when exercising their powers, but they cannot   the sole or main reason to single out an individual”

The complainant refers to the case of Rosalind Williams Lecraft v Spain where a woman at a railway station was asked to show her identity papers. Upon being asked why, the police officer said, “It’s because you are black”. The Human Rights Commission of the United Nations recommended that the Spanish Government take steps to stop racial profiling. A similar decision to cease discriminatory identity checks issued from the French Court of Cassation, Decision 1245, 9 November 2016.

Article 14 of the European Convention on Human Rights protects a person from discriminatory treatment.

The same principles under Article 21 of Charter of Fundamental Rights of the European Union are mirrored in the Charter of Human Rights, the instrument used to advance the last two cases. The ‘Race Directive’, Council Directive 43/2000 encompasses the obligations contained in the Charter of Fundamental Rights of the European Union. The Race Directive obliges the WRC to address racial profiling which is a form of discrimination.

Supremacy of EU Law.

The WRC are responsible for the enforcement of the the Equal status Act, 2000 as amended which was enacted to give effect to the ‘Race Directive’, Council Directive 2000/43/EC of 29 June 2000 which provided for the implementation of the principle of equal treatment in relation to the access of goods and services between persons irrespective of racial or ethnic origin. The Race Directive’ builds on and refers to the The European Charter of Fundamental Rights, the ‘Charter’ which prohibits discrimination on grounds of race. Art 47 of the ‘Charter’ requires an effective remedy and a fair trial for complaints of discrimination. To deny the complainant jurisdiction to present her complaint is in breach of the Directive based, as it is, on the ‘Charter’ which obliges each member , state to provide for such a remedy. To hold up section 46 of the Act of 2000 as a ground for refusing jurisdiction creates a barrier to giving direct effect to both Directive 2000/ 43/EC and to Article 21 of the ‘Charter’. It amounts to increased costs for the complainant , aggravating the discrimination   and constitutes victimisation for having taken the complaint.

Article 14 of the European Convention on Human Rights protects a person from discriminatory treatment.

The WRC is bound by the recent decision of the CJEU, C- 378/17 EU. This case found that bodies charged with the implementation of EU law (the Equality Tribunal, replaced by the WRC) could disapply a provision which conflicts with EU law. The complainant argues that the CJEU ruling means that the WRC is obliged to ensure that EU law is fully effective and may disapply any provision of national legislation that may be contrary to EU law. The complainant argues that in the circumstances of the instant case, the supremacy of the Race Directive means that the restrictions imposed by virtue of section 46 of the Act of 2000 fail to give effect to the Directive and the ‘Charter’ as they narrow the jurisdiction to incidents relating to aircraft only registered in Ireland and the section can be disapplied. If, as the complainant submits, section 46 is deficient, then the decisions of the CJEU mean that it should be disapplied.

Reliance on Consumer Rights Directive.

The complainant’s representative submits that the Consumer Rights Directive, 2011/83/EU gives extra- territorial jurisdiction to pursue a complaint concerning discriminatory treatment in accessing an aircraft. The complainant’s representative argues that Consumer Rights Directive 2011/83/EU applies to the complaint . He cites a paper by Dr. Jens Kleinschmidt Professor of Law Trier University, Jurisdiction over consumer contracts, 26 September 2017, which states that jurisdiction to prosecute a complaint in the consumer’s domicile is protected by Art. 17 and 18, Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 1968. There is a sufficient connection between the incident at Frankfurt Airport and Ireland as the ticket was purchased on- line in Ireland by the complainant who is a consumer. Implementation was to have started in Dublin and was to have been completed in Dublin This does not remove jurisdiction from Dublin and transfer it to Frankfurt. There is a branch of Lufthansa in Ireland, named Global Telesales Lufthansa. Lufthansa fly planes in and out of Dublin. They travel between European countries. Access to services is expressly included in Council Directive of 43/ 2000. Travel is one such service. The complainant’s representative stated that the boarding pass issued to the complainant refers to conditions of carriage and same refers to general conditions of carriage of the Lufthansa Group Airlines. The complainant’s representative stated that a statutory prohibition on discrimination is a branch of a consumer contract. It is a separate statutory breach.

Failure to identify the correct respondent

The respondent only advised the complainant’s representative at the hearing that the security company is wholly responsible for the incident.

The complainant submits that it is not clear that the security company are the correct respondent. The complainant’s solicitor submits that Lufthansa are responsible for the governance of the boarding process, for the non- discriminatory boarding of passengers embarking on their aircraft at Frankfurt Airport, and the checking of tickets and identification of documents. It was an EU flight- Athens – Frankfurt – Dublin. Lufthansa have a dominant responsibility to identify what documents are required. The complainant gave her airline ticket to a Lufthansa employees at the last gate prior to embarkation. The complainant understands that it was a Lufthansa desk/station. This employee asked her where she had come from. She explained Athens and was asked what she was doing there. The Lufthansa employee asked hr to take a seat, handed her documents to person B. He asked her how long she had been an Irish citizen. She asked him why she was required to give further evidence of identity and he stated that she “did not look like a typical Irish person”. He handed her documents to person C. Ultimately, she was allowed to proceed onto the plane but not without being required to furnish three more proofs of identity over and above other passengers. The three individuals involved in this episode should have had name tags or identifying symbols. Paragraph 5 and 6 of conditions of carriage state that security is to be handled on behalf of Lufthansa. No information was supplied to the complainant on the 3 individuals involved in the incident of 8 December 2018.

The remedy requested is that Lufthansa carry out an investigation to ensure that this does not happen again.

Compliance with section 21 of the Act of 2000 as amended.

The complainant wrote to the customer relations Department of Lufthansa on 10 December 2018. The respondent replied on 14 and again on 19 December. The complainant states that her email of 10 December, read into the record, indicates that she was dissatisfied with the incident at Frankfurt and that she intends to seek redress. She did not accept the adequacy of the response which is that because it was a third party – a security person- Lufthansa are spared any responsibility.

If the WRC accept the respondent’s argument about the inadmissibility of the complaint by virtue of section 21(2) , the Adjudicator should accept that section 21(3) (a) and (b) should apply.- It is an exceptional case. The complainant did not know which Act covered the incident in Frankfurt Airport. These are complex legal structures. She has met the requirements of section 21(2) in that she has put the respondent on notice . She substantially complied with requirements in that her application and submission left the respondent in no doubt that the complainant wanted an investigation and stated in her email of date 10 December 2018 she’s not going to let it be. This clearly implies that she is going to take action. The respondent failed to inform her as to where the investigation stood. The complainant did ask in her email of March 3rd at what stage the investigation stood. No response was provided in relation to this question.

I am obliged to establish if the respondent discriminated against the complainant. on grounds of ethnicity and colour contrary to Sections 3(1), 3(2)(h) and 5(1) of the Equal Status Act, 2000, as amended, in discriminatorily subjecting the complainant to identity checks based on her colour and treating her less favourably than persons of a different ethnic background and colour.

The statutory provisions guiding the examination of this complaint of discrimination are contained in Section 3(1) of the Equal Status Acts 2000-2016 which states that

“discrimination shall be taken to occur where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds listed in sub- section (2)’.

Section 3(2)(h) of the Act of 2000 as amended specifies the race ground as one of the grounds covered by the Act.

I must first consider the jurisdictional points.

Three Jurisdictional points.

Section 46 of the Equal Status Acts 2000-2015 deprives the WRC of jurisdiction to hear the complaint.

The complainant has failed to identify the correct respondent.

The complainant has failed to comply with the requirements of Section 21(2) of ESA.

Section 46 of the ESA deprives the WRC of jurisdiction to hear the complaint .

The complainant refers to the respondent’s contention that the Act of 2000-2015 and European Law do not allow the instant complaint to be pursued in Ireland because the respondent does not have a registered business in Ireland and the complaint is domiciled in Ireland. The complainant argues that the case of Rosalind Williams Lecraft v Spain, an appeal against a decision of a Spanish Constitutional Court, concerning racial profiling, to the Human Rights Commission of the United Nations disproves the alleged absence of jurisdiction to hear he instant complaint. But this complaint which was upheld, concerned a breach of human rights. My role is to examine complaints of discrimination under the Equal Status Act 2000-2015.

Armin Maletic and Marianne Maletic v lastminute.com Gmbh and TUI Österreich GmbH,Case C 478/12. The court held that the consumer was entitled to bring an action in the place of his domicile against a travel agency in another member state. But this was a consumer contract at issue and not a complaint of discrimination.

I find that I do not have jurisdiction to examine breaches of consumer rights under the Equal Status Acts 2000-2015.

The respondent submits that the application of Section 46 to the facts of this complaint deprives the WRC of jurisdiction to hear the complaint. Section 46 states

"(1) The provisions of this Act shall extend to and apply in respect of any ship or aircraft registered in the State that is operated by a person who has a principal place of business or ordinary place of residence in the State, whether or not the ship or aircraft is outside the State

(2) An act which -

(a) is done on or in respect of such a ship or aircraft while subject to the jurisdiction of a country outside the State, and

(b) is required to be done to comply with the law of that country,

shall not constitute discrimination for the purposes of this Act."

As has been acknowledged the aircraft was registered in Germany. The respondent does not have a place of business or principal place of business in Ireland.

The matter of the territorial scope of the Equal Status Act 2000-2015, and section 46 was considered in A Complainant ( on behalf of her son) v A Airline, Dec-S2011-033.The complaint was based on the disability ground. The complainant was flying on a aircraft registered in the USA and the respondent’s principal place of business was in the United States and the Irish branch was only a small branch. The Equality Officer found it necessary to consider International Law . He observed

“ The nationality of aircraft is dealt with under the Chicago Convention and the following articles are of relevance:

"Article 17

Nationality of aircraft

Aircraft have the nationality of the State in which they are registered”

There are various other international agreements that affect the exercise of civil jurisdiction by states. In particular, Article 28 of the 1929 Warsaw Convention on International Carriage by Air, as subsequently modified by other treaties, allowed a plaintiff a choice of jurisdiction but only in relation to damages which refer to death, bodily injury, damage to baggage or damage caused by delay. The Montreal Convention also carved out exceptions where the individual does not have to take a case in the State where the damages occurred. Again, this is where death occurs or there is damage to the body or to baggage.”

The only matters that can be heard in a Court of another jurisdiction other than the Courts in the country where the aircraft is registered are matters which arise directly under the Montreal Convention. In this context, section 46 of the Acts extends the jurisdiction of the Irish Courts (or in this case the Tribunal) over acts committed on an Irish owned aircraft even where that incident takes place outside the Irish State……. In all the circumstances of the present complaint, then, and particularly in light of international law relating to International Aviation and Section 46 of the Acts, I consider that I do not have jurisdiction to consider this complaint. Therefore, I cannot consider the matters any further”.

The Equality Officer noted that in the cases of Callan -v- United Travel, DEC S2009-007     “the relevant complaints were addressed even though the incidents complained of took place outside the jurisdiction. However, in both instances, the service in question was obtained in Ireland and the services were requested from a company whose main place of business was Ireland”.

In the instant case , the ticket was purchased electronically in Ireland but the company operating the service was in Germany.

Based on the evidence and authorities, I find that section 46 of the Act of 2000 as amended does not provide extra- territorial jurisdiction to hear the complaint.

Primacy of EU Law as a ground for disapplying Section 46 of the Act of 2000 as amended.

The complainant’s representative cites many reasons why section 46 should be disapplied .

I must acknowledge that the Equality Tribunal’s decisions, cited by me, predate the decision of the CJEU - C- 378/17 . In the latter case, the individuals brought complaints to the Equality Tribunal (now the WRC) claiming that the age limits for the recruitment of Gardai were discriminatory and contrary to the Employment Equality Acts, which transposed EU Directive 2000/78 in Ireland. The Minister for Justice and Equality argued that the Equality Tribunal / WRC lacked jurisdiction on the ground that the operative laws governing the recruitment of Gardai, namely the Admissions and Appointments Regulations, are a measure of national law and only courts established under the Irish Constitution had jurisdiction to dis-apply national law. The CJEU held that the WRC has an obligation to ensure that EU law is fully effective and may disapply any provision of national legislation that may be contrary to EU law. Because of this decision, the complainant asks me to accept that the limitation imposed by section 46 of the Act of 2000-2015- that complaints of discrimination submitted in Ireland and connected to aircraft are only admissible if the aircraft is registered in Ireland -need not apply. But the decision I am asked to apply to the instant case concerned the ability to disapply a particular measure- namely Admissions and Appointments Regulations -which operated an arbitrary age limit. So, everybody over 35 was equally disadvantaged and treated less favourably than applicants under 35 by virtue of the the impugned measure. The decision was not a green light to disapply any measure characterised by a party as failing to give effect to the Race Directive irrespective of the circumstances of the case. The current complaint is taken on the race grounds, but section 46 of the Act applies to everybody irrespective of nationality, colour or race. So, a white Irish passengers or passengers of any other ethnic background or colour domiciled in Ireland and seeking to take a complaint related to a discriminatory act associated with an aircraft registered in a foreign country would be equally disadvantaged one to the other and denied jurisdiction to have their complaint heard. The existence of Section 46   of the Act favours none, nor differentiates between persons of a different racial or ethnic background   in Ireland. Section 46 does not, therefore, generate less favourable treatment on grounds of race.

I am unable to find, therefore, that the existence of section 46 fails to give effect to the entitlement to equal treatment irrespective of race and found in the Race Directive.

The complainant cites the EU Charter of Fundamental Rights as having direct effect on EU law and Irish legislation. The complainant asks me to accept that Art 47 of The European Charter of Fundamental Rights, the ‘Charter’ which prohibits discrimination on grounds of race requires an effective remedy and a fair trial for complaints of discrimination and that this must supercede any barrier in the way of having her complaint of discrimination heard. But as has been said, section 46 applies to all complainants in Ireland irrespective of race and colour. A remedy may be available in the respondent’s mechanisms for dealing with complaints concerning conditions of carriage. The complainant has described the contract which she had with the respondent as a consumer contract and there are mechanisms available to deal with consumer complaints.

I do not find the Brussels Regulations are of assistance to a complaint of discrimination on race grounds which occurred in a member state other than the complainant’s domicile.

The complaint before me is not an action in contract laws.

The territorial jurisdiction of the Equal Status Act 2000-2015 contained in section 46 is compatible with the body of Law concerning nationality of aircraft and the matter of territorial jurisdiction.

I find that by virtue of section 46 of the Act of 2000 as amended , I do not have jurisdiction to hear this complaint.

For the sake of completeness, I will address he two remaining jurisdictional points.

Failure to name the correct respondent.

I have been asked to accept that the security company and not Lufthansa is the correct respondent. It was the security guard employed by Securitas who requested additional documents and who stated, “you are not a typical Irish person”,

But it was a Lufthansa employee who plucked the complainant, alone, out of a line of passengers set to board the flight and referred her to security.

I received further documentation from the respondent on the 7 January, after the hearing and copied to the complainant. The documents included a contract between the respondent and the security company. ” Contract for APISI document control at the FRA, DUS, MUC, TXL locations "Lufthansa" contract and Securitas Flugverkehr Services GmbH HahnstraBe 70 60528 Frankfurt”

It stated “Lufthansa and Securitas agree a partnership with the following content:

1) Contracting parties are Lufthansa and Securitas.

Implementation of the document control, APIS data recording, ID check,

The subject of the contract is the implementation of document control, APIS data recording, ID check.

It states

“The contractor is liable for the misconduct of its employees and agents.

.In the event of improper conduct towards passengers and / or the client's employees, the client - possibly also represented by the flight manager of the respective flight - is entitled to have the employee replaced by the contractor's property manager. In this case, the contractor is obliged to immediately provide replacement personnel. The contract is subject to the laws of the Federal Republic of Germany”.

The respondent also stated in their email to the WRC of 7 January that “We are instructed that Lufthansa have reviewed the provisions of the contract and are undertaking further investigations into Ms Kelly’s complaint with Securitas”.

Although the security guard involved in this incident on the 8 December 2018 was not employed by the respondent, Section 42(2) of the Equal Status Act 2000 states:

“(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.”

While the respondent’s representative transferred liability to the security company for the actions of the security guard, their contract with Securitas confers authority for document control and ID checks to Securitas. The contract also authorises the respondent to request the replacement of the security personnel in the event of misconduct towards the respondent’s passengers. The respondent has oversight as to how the security company functions. The respondent was unable to confirm or deny if the incident took place.

I find on the basis of the evidence and section 42(2) that the security company were acting for the respondent- “another person”. I find that the respondent is vicariously liable and as such is a correct respondent.

Non- compliance with section 21(2) of the Equal Status Act 2000-2015

The complainant submitted that in circumstances where she failed to comply with the requirement to notify the respondent of her intention to initiate proceedings under the Act, as set out in section 21.(2), I can dispense with the notification requirement in this case by virtue of Section 21(3)(a)(ii) of the Acts. It states that, on application by the complainant, and in accordance with the powers delegated by the Director, I may:

"exceptionally, where it is satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection 2 [the notification requirement] shall not apply in relation to the complainant to the extent specified in that direction"

( b   ) In deciding whether to give a direction under paragraph (a)(ii)   the Director of the Workplace Relations Commission or, as the case may be, 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.

This provision should only be applied exceptionally. Section 21(3)(b) outlines that in considering this matter the extent to which the respondent is aware of the circumstances surrounding the matter and whether it is prejudiced by my granting the direction in question is critical. I find that the complainant’s emails indicated that she had no intention of accepting the treatment meted out to her on the 8 December. I find that she was impeded in furnishing a ES.1 form in that she was at sea in terms of the promised investigation of the incident and its conclusions. She explicitly stated how seriously she viewed the matter and referred to her rights under European Law.

I find that the customer relations department of the respondent was on notice of the complaint , the details and the parties within two months of the alleged incident in question. They responded to the complaint and offered her a sum of money. That section of the respondent’s organisation should be capable of transferring the necessary information to the correct section . If any prejudice was suffered by the respondent, it was due to the failure of one arm of the organisation to pass it on to another.

In Ennis v Navan O ’Mahony’s Football and Hurling Club, DEC-S2010-031, the Equality Officer concluded that the complainant’s question “will ye do something about this, or will I?" and the remaining content of that complainant’s correspondence could leave no one in any doubt but that the complainant took the matter very seriously and that they intended to take the matter further, though he did not expressly refer to the possible institution of proceedings against the respondent.

In the instant case , I find the complainant’s reference to racial discrimination, apartheid, the invocation of her rights as a citizen of the EU and of their violation ,her outrage at the treatment, the request to investigate the matter and to treat the matter with the respect it deserved could have left the respondent in no doubt that she intended to proceed further with the matter.

In all the circumstances outlined in the previous paragraphs, I do not see how the respondent would be prejudiced were I to invoke Section 21(3)(a)(ii). Therefore, in accordance with the power delegated to me by the Director, and in accordance with Section 21(3)(a)(ii) of the Acts. I find that the WRC has jurisdiction in the matter as regards Section 21.

Conclusion.

Because of the conclusions reached on the first jurisdictional point, concerning section 46 of the Act of 2000,I find that I do not have jurisdiction to hear the complaint

I find that I do not have jurisdiction to hear this complaint.

Section 46; alleged discriminatory conduct outside of the state.