Complainant

Respondent

Anonymised Parties

Landowner

County Council

Representatives

Joseph Davies C.S. Kelly & Company Solicitors

Council Legal

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00031130-001

25/09/2019

I have decided to anonymise the parties to protect their identities.

Preliminary Point - Jurisdiction

Respondent’s Position

It is a condition precedent to bringing any such matter before the Workplace Relations Commission that the individual complainant shall have already notified the Respondent in writing (Form ES 1) of the nature of the allegation and the intention to seek such redress if not satisfied with the Respondent’s response. The complainant refers to having submitted same on the 13th August 2019. Section 21 of the Equal Status Acts as set out below makes 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 Equal Status Acts, 2000 - 2015, states that:

"Before seeking redress under this section, the complainant-

(a) 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-

(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.”

It is the position of the Respondents that the WRC does not have jurisdiction to hear and adjudicate upon the Complaint because the notification requirements under section 21 of the 2000 Act have not been complied with. The service to which the complaint refers relates to a matter raised by the complainant on the 31st July 2017, however he sets out in his complaint form that he submitted something on 13th August 2019. It is submitted by the Respondent that they have no record of receipt of form ES1, however in 2019 alone the Complainant has sent in excess of 500 emails to the Respondent a number of which have been rejected by the Council’s firewall, therefore it is not possible for the Respondent to confirm on an absolute basis that the Complainant did not forward same. However, without prejudice to this it is the position of the Respondent that compliance with section 21(2) is to be strictly interpreted by the WRC which includes the two-month time limit. Clearly in this instance the Complainant has failed to adhere to this. Whilst the Complainant may seek to rely on the fact that he has been engaged in lengthy interactions with the Respondent, however the Respondent rejects this as providing for compliance with the Act and rely on the decision of Borsca v Bank of Ireland ADJ-00010452 (Appendix 1), in which the Adjudicator advised as follows;

“However, I have found that the complainant activated the Banks Internal complaints procedure by means of the letter dated June 1, 2017. It now seems that she also wished to present this document in a dual capacity as complying with the ES1 format before the WRC. It is regrettable that the ES1 form readily available online did not reach the Respondent in its pure format. I found that the duplication in complaints served to confuse the issues which separated the parties.

However, there are strict notification requirements, and these have not been satisfied in their entirety in this case. I appreciate that the Complainant referenced the Equal Status Act in her complaint but there is a clear variance in the statutory notification requirement.

The purpose of the ES1 form is to allow the Respondent some time to engage with the complainant with a view to seeking to resolve the matter. Provision is made for Information sharing if same is requested by the complainant.

The Complainant did not place the Respondent on notice of her intention to refer the case to the WRC if dissatisfied with the response received by the respondent. I appreciate that there was a clear duplication in the initiation of the complaints which culminated in confusion. However, I am required to ensure that all aspects of Section 21 of the Act have been met. On this occasion, I have found a shortfall which in my opinion has not been sufficiently explained or reasoned by the complainant.

This omission has prevented my jurisdiction in the case, and I must deny jurisdiction.”

As the Labour Court stated in Brothers of Charity Services Galway –v- Kieran O’Toole (EDA177),  there must be “some reality” to the claim that acts of discrimination actually occurred within the limitation period, otherwise a complainant “could revive a claim which had been extinguished by the time limit simply by raising an additional related claim, no matter how tenuous, within the time limit”. Any attempt by the Complainant to rely upon statements by the Respondent’s in correspondence or meetings is an attempt to bring his Complaint within the statutory period and should not be permitted.

Complainant’s Position

The Complainant stated that he gave a copy of the ES1 form to the Adjudication Officer at the face-to-face hearing which ended up being adjourned. There was a responsibility on the Adjudication Officer to check the files from that hearing. If that was done, then the form would have been seen. He stated initially that he may have emailed the County Council with this form. He stated that this did not feature as a problem with the first hearing so why was it a problem now. He is alleging that the County Council has discriminated against him on a number of grounds and he is now being prevented from having his case heard because of the ES1 form not being available. The Council is well aware of this complaint, he has sent hundreds of emails to them, they are fully aware of his claims and these should be heard and not being deferred by the non-appearance of this form. This is not his problem, he gave the form to the Adjudication Officer at the face-to-face hearing. That hearing went ahead but was adjourned. If it was OK to start the first hearing why can’t it continue now. The Adjudication officer should examine the notes/file from the first hearing.

Decision on the preliminary Point

The Equal Status Act places an obligation on a person taking a claim to notify the Respondent company of their complaint. Section 21 (2)(a) of the Equal Status Acts, 2000 - 2015, states that: "Before seeking redress under this section, the complainant-  (a) 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-

(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.”

This notification must be in writing, it is not a requirement to use the Form ES1 as long as the correct information is provided. The Form ES1 advises that a record is kept of the written notification, it should be sent by recorded post or registered post.

Sec 21 (4) states, “The Director shall not investigate a case unless he or she is satisfied either that the respondent has replied to the notification or at least one month has elapsed after it was sent to the respondent”.

Therefore, the law states that a case cannot be heard by an Adjudication Officer until the Adjudication Officer having been appointed by the Director is satisfied that the notification was sent and the respondent has replied to the notification or the complainant has waited one month after it was sent before submitting a claim.

In this case the Respondent County Council has stated that they did not receive a written notification or Form ES1.

The Adjudication Officer was obliged in law to ascertain if the written notification was sent.

The Adjudication Officer advised the hearing of this requirement and then asked the Complainant to demonstrate that he sent the written notification to the Respondent.

The Complainant stated that he may have emailed it. He was then asked to find that email which must specifically refer to the written notification form and must be dated.

The Complainant then stated that he had given it to the Adjudication Officer at the first hearing. It was not a problem with that Adjudication Officer then so why was it a problem with this one.

The Adjudication Officer stated that it was irrelevant if he gave a copy of the notification form to the Adjudication Officer at that first hearing, he had to show that he notified the Respondent Council and got a response or waited one month before presenting a claim to the WRC.

The Adjudication Officer noted that the Complainant did not appear to appreciate this point which was a legal requirement. He kept repeating that he had handed it in to the previous Adjudication Officer at that first hearing.

The Adjudication Officer has subsequently examined the file from that first hearing and there is no Form ES1 or written notification. There was a Form ES2 which appears was partially filled out by the Complainant, was not signed or dated.

That Form ES2 which is a form to be used by the Respondent in reply to the Form ES1 or written notification could have been accepted as an error as it is not a proscribed form and so could have been accepted if the contents were clear and the writer was identified by name or signature and dated. This Form ES2 was not completed, not dated and not signed. Also, there was no evidence that it was sent to the Council.

The Complainant was given to close of business on Friday 19th February 2021 to prove that a written notification was given to the Council.

No such evidence was received by close of business, so the Adjudication Officer concluded that no such evidence exists to prove that a written notification was sent.

Therefore, according to Sec 21 (4) as set out above, the Adjudication Officer does not have jurisdiction to hear and adjudicate upon this case.

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.

For the above stated reasons, I have decided that I do not have jurisdiction to hear this case.

I have decided that this claim is not well founded and so it fails.

Respondent not notified of complaint