Complainant

Respondent

Parties

Miroslaw  Klos

Unalex Limited t/a Abrakebabra Carlow

Complainant

Respondent

Anonymised Parties

Miroslaw  Klos

Unalex Limited t/a Abrakebabra Carlow

Act

Complaint Reference No.

Date of Receipt

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

CA-00042321-001

04/02/2021

The following is a brief outline of the Complainant’s and Respondent’s respective cases.

The Complainant claims that he was refused service by the Respondent because he was not wearing a face mask. He said that he informed the selling agent for the Respondent that he cannot cover his face because he has “medical problems”.

He said that he showed a doctor's certificate, outlining that he was exempt from wearing a face covering, however he was refused service. He claims that this is discrimination on the disability ground under the provisions of the Equal Status Act 2000.

The Respondent said that the Complainant began recording the server in its establishment, on his mobile phone, before putting a letter in front of her claiming that he was exempt from having to wear a mask. He was asked to stop recording her, but he did not.

It said that the server did take his order and he was given a pager to enable him to be called when the order had been processed. It said all customers are given a pager and asked to wait in the car due to the limited space in the store. This is how all customers are normally treated.

The Respondent said that the Complainant was approached and asked to delete the recording on his phone, but he refused. It said because of this his order was cancelled and his money was returned to him.  

The Respondent said that it did not receive proper notice from the Complainant of his intention to refer a case to the Workplace Relations Commission within the statutory notice period. The Respondent claims therefore that the Adjudication Officer must refuse jurisdiction and dismiss this case accordingly.

Preliminary matter on jurisdiction.

At the outset of the Hearing the Respondent raised a preliminary matter as to the requirements set out in the Equal Status Act 2000 before the complaint can be lodged with the Workplace Relations Commission (WRC). The Respondent said that the complaint originates from an alleged incident dated 10 December 2020, accordingly the Complainant must notify the Respondent in writing within 2 months of that date, usually in the form of an ES1 form.

It said that the Complainant has stated that he was in contact with the WRC at the time and was told by the WRC of this requirement. However, it never received notification of the complaint, not to mind within the prescribed time limit under the Equal Status Act 2000.

Preliminary matter on jurisdiction.

The Complainant stated that it had been in contact with the Workplace Relations Commission following the incident and was informed that it should notify the Respondent in writing and to keep a record of that notification.

The Complainant said that he sent the ES1 form by registered Post on the Respondent on the 5 February 2021 and kept a receipt as proof of postage. He said that An Post returned the envelope on 12 February 2021 and no reason was given as to why the package was not delivered to the Respondent. The Complainant stated that he did all that was expected of him, namely he attempted to notify the Respondent. It was not his fault that An Post failed to deliver the post.

Relevant Law

Section 21(2) of the Act 2000 states,

“[…]

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, as the case may be, 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, as the case may be, 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 particular 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, 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. 

(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.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6) (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 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.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice. 

(7A) (a) Not later than 42 days from the date of a decision of the Director of the Workplace Relations Commission on an application by a complainant for an extension of time under subsection (3) or (6), the complainant or respondent 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. 

(b) On the appeal the Court may affirm, quash or vary the decision.

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

(d) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Director of the Workplace Relations Commission on such an application until —

(i) the period of 42 days mentioned in paragraph (a) has expired, or

(ii) any appeal against it has been determined,

whichever first occurs.

(8) Information is material information for the purposes of this section if it is—

(a) information as to the respondent’s reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,

(b) information, other than confidential information, about the treatment of other persons who stand in relation to the respondent in the same or a similar position as the complainant, or

(c) other information, which is not confidential information and which, in the circumstances of the case in question, it is reasonable for the complainant to require.

(9) In subsection (8) “confidential information” means any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.

(10) This section is without prejudice to the other provisions of this Act relating to the obtaining of information.

(11) For the purposes of this section prohibited conduct occurs —

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.”

Notification requirement

In relation to the preliminary matter raised regarding the notification requirement, I note that Section 21(2)(a) requires a person seeking redress under the Equal Status Acts 2000 to notify the Respondent of the complaint within two months. The Complainant in this case attempted to comply with that requirement when he posted the ES1 form on 5 February 2021. That would in the majority of situations have been sufficient to meet the requirements. However, it is without doubt that An Post failed to deliver the notification and returned the package of documents back to the Complainant without any reason as to why it had failed in its task.

The Complainant in evidence said he had been in contact with the Workplace Relations Commission information service through out the lodging of his complaint and was informed that it was a requirement to notify the Respondent in writing as per the Act. However, the Complainant on receipt of his registered letter returned to him failed to take any further action. He said at the hearing that it was not his fault that the post was returned, that he had done what was expected of him in posting the notification and keeping record of that.

Section 21(2) of the Act places an obligation on the Complainant to “notify the Respondent in writing” within 2 months, which can be extended to 4 months for reasonable cause, (section 3(a)(1)). However, the Complainant failed in his obligations here, and failed to seek to take any remedial action once he was on full notice that his form ES1 had not been served on the Respondent but had been returned to him. 

The purpose of the notification was addressed in O’Brien and McCarty v Ruari’s Bar, Tralee DEC-S2007-039 as dual purpose to alert the respondent at an early stage about the nature of the equality complaint and it affords the respondent with the opportunity to resolve matters without recourse to the Equality Tribunal, which was responsible for such matters in 2007. The importance of the notification requirement was endorsed in Neary v Dublin Airport Authority DEC-S2010-036 where the Equality Officer reaffirmed its importance.

The language in section 21 of the Act is prescriptive, clear and specific. Ultimately, it is clear that the obligation to meet the time limits and notification falls squarely on the Complainant. Statutory requirements, such as the notification requirement are an important and fundamental necessary part of a proper operational judicial process and are present to create certainty for all parties and must be fully respected.

I am satisfied that only in exceptional circumstances can the notification requirement be dispensed with, as per section 21(3)(ii) of the Act. I am satisfied that a case for it to be dispensed with has not been made out in the instant case under consideration.   

I am satisfied that the Complainant’s failure to meet the statutory notification requirement obligation of this complaint is crucial in this case.

I find that the Complainant has failed to notify the Respondent within the required time limits set out in section 21(2) of Act. Therefore, I have no jurisdiction to investigate the above complaint.

Equal Status Acts – notification requirement - no jurisdiction to investigate.