EDA2221

1.Appeal of Adjudication Officer Decision No’s: ADJ-00017328 CA-00022440-002.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 16 March 2020. A Labour Court hearing took place on 10 February 2022 and on 4 August 2022. The following is the Court's Determination:




DETERMINATION:

This is an appeal by Mr. Daniel Knott against the Decision of an Adjudication Officer (ADJ-00017328 CA-00022440-002) under the Employment Equality Acts 1998-2015 concerning alleged discrimination on multiple grounds by Mr Knott’s former employer, Tui Ireland Limited.

In this Determination the parties are referred to as they were at first instance, hence Mr. Knott is referred to as ‘the Complainant’ and Tui Ireland Limited is referred to as ‘the Respondent’.

By Decision dated 5^thFebruary 2020, the Adjudication Officer found that the claims for redress for discrimination were not well founded and dismissed the claims.

The Complainant appealed the Adjudication Officer Decisions to this Court on 16^thMarch 2020. The appeal came before the Court on 10^thFebruary 2022 and on 4^thAugust 2022.

This appeal under the Employment Equality Act is one of a series of appeals taken by the Complainant against the Respondent under other employment enactments (The Unfair Dismissals Acts; the Parental Leave Act; the Minimum Notice and Terms of Employment Acts) which are the subject of separate Determinations of the Court. All appeals were heard by the Court on the above referenced dates.



Background:

At the hearing of the matters on 10^thFebruary 2022, which took place in a virtual courtroom, the Court at the outset sought to clarify with the parties a number of matters in relation to the various appeals before it.

The Complainant’s representative, a professional representative from a human resources consultancy firm (‘HR Consultant’), responded on behalf of the Complainant and confirmed certain details to the Court, including the withdrawal of all appeals, with the exception of the appeal under the Unfair Dismissals Acts, which appeal it was confirmed the Complainant would be proceeding with.

Following a further period of exchanges between the Court and the Complainant side, including brief adjournments to allow for discussion between the Complainant and his representative, the Complainant himself informed the Court that he was no longer being represented by the HR Consultant and instead would be representing himself before the Court. He confirmed that he would be proceeding with all of his appeals and was not withdrawing any of the appeals. The Complainant further informed the Court that he did not have the relevant files at his disposal, and he did not have copies of the written submissions which had been filed with the Court by the HR Consultant.

In light of the circumstances, the Court decided to do some case management. The Court gave detailed instructions to the Complainant of what he was required to provide to the Court for a reconvened hearing of his appeals. The Complainant was informed that he must, within a period of two weeks from 10^thFebruary 2022, confirm in writing to the Court, which of his appeals he wished to proceed with and which, if any, of his appeals he did not wish to proceed with. The Complainant was further informed that after having provided the Court with the confirmation regarding the appeals, he would then have a further three weeks in which to provide the Court, copying the Respondent, with written submissions. These submissions were to set out the details of his case in each of his appeals concerning the alleged breaches of the relevant enactment which occurred during the time period stipulated by that enactment. It was confirmed that upon receipt of the written submissions the appeals would be re-listed for hearing.

Following the hearing, on the same day, 10^thFebruary 2022, the Court Secretary emailed the Complainant seeking that the Complainant provide the Court with full details of his contact information on the basis that the Complainant had requested that the HR Consultant come off record as his representative. There followed email exchanges between the Complainant and the Court Secretary between 10^thFebruary and 14^thFebruary 2022 during which the Complainant confirmed all contact information for himself.

On 9^thMarch 2022, the Court Secretary sent an email to the Complainant reminding the Complainant that he had been given instructions by the Court at the case management on 10^thFebruary 2022 regarding required information and submissions. On the basis that the deadline had passed without receipt of the requested submissions, the Secretary sought an update from the Complainant as to the status of matters.

In an email reply to the Secretary on the same date, the Complainant informed the Court that the delay in providing the required information and submissions was due to the fact that he had been ill. The Complainant further informed the Secretary that he wished to proceed with all of his appeals but that he was requesting the recusal of the Court Division that dealt with his appeals on 10^thFebruary 2022. The Complainant also stated that he did not want the Division to be informed that he was seeking their recusal. The Complainant informed the Secretary that he believed based on the case management where he was asked to particularise his complaints that he would not receive a fair hearing from the same Division.

On 10^thMarch 2022, the Court Secretary on behalf of the Division replied to the Complainant’s email, informing him that he would need to make a formal request in writing to the Division setting out the basis for the request if he wished for a Division to recuse itself. The Complainant was informed of what would need to be included in such a formal request and he was advised as to how a formal request would be processed thereafter, having been submitted by him.

Additionally, the Complainant was advised that he was still required to provide the submissions and documentation requested of him by the Court for the hearing of his appeals at a reconvened hearing. The Complainant was given a further three weeks from 10^thMarch 2022 to comply with the request and advised that in the event of non-compliance the hearing of his appeals may proceed at a future date without his amended submissions and documentation.

In the event, the Complainant failed to provide a formal request for recusal, as instructed, and failed to provide the requested submissions and documentation. Nor did he reply at all within the stipulated timeframe.

On 13^thJune 2022, the Court sent correspondence, by both email and ordinary post, to the Complainant and to the Respondent notifying the parties of a date of 4^thAugust 2022 for the hearing (in-person hearing) of the Complainant’s appeals at the Court’s premises at Lansdowne House in Dublin.

On the same day, 13^thJune 2022, the Court received an email from the Respondent’s representative seeking that the hearing on 4^thAugust 2022 be heard in a virtual courtroom rather than in an in-person hearing, due to the fact that the Respondent’s witnesses were based at the Respondent’s offices in the United Kingdom. The Respondent’s representative also provided the Court with a copy of an email in the same terms that she had sent to the Complainant on that date.

Later that afternoon, on 13^thJune 2022, the Court received an email from the Complainant, in response to the request from the Respondent, expressing his preference for an in-person hearing.

On 15^thJune 2022, the Court confirmed by email to the parties that the request for a change of venue to a virtual courtroom was refused and that the hearing would proceed as scheduled in Lansdowne House in Dublin on 4^thAugust 2022.

On 27^thJuly 2022, the Court, as is standard practice, sent separate emails to both the Complainant and the Respondent, requesting details by return of the parties’ attendees that will accompany them at the hearing on the day.

No reply was received from the Complainant and the Court sent a reminder email to the Complainant on 29^thJuly 2022.

Again, no reply was received from the Complainant and a further reminder was sent to the Complainant on 2^ndAugust 2022.

At approximately 4.00pm on 3^rdAugust 2022, the afternoon before the hearing, the Court Secretary received a telephone call from the Complainant. The Complainant advised the Court Secretary that he had only seen that day the recent emails from the Court Secretary, the first of which was sent on 27^thJuly 2022. The Complainant stated that he was“unsure”if the hearing was on tomorrow (4^thAugust 2022) and he refused to confirm to the Secretary as to whether or not he would be attending the hearing on 4^thAugust 2022.

The Complainant further claimed not to have received any reply to his earlier request for recusal on 9^thMarch 2022. The Secretary undertook to re-send the email from the Court of 10^thMarch 2022 which had been emailed to the Complainant in response to his recusal request.

At 4.30pm (3^rdAugust 2022) the 10^thMarch email was re-sent to the Complainant by the Secretary. In reply to the re-sent email, the Complainant stated that he believed that he had already made a formal request for recusal by virtue of his email on 9^thMarch 2022.

At 4.52pm (3^rdAugust 2022) the Complainant sent a further email to the Court Secretary in which he reiterated his concerns in relation to the Court Division due to hear his appeals. He further reiterated his belief that he had already made formal request for recusal. He stated that he could not proceed with a case because he has not had an answer to his queries.

The Complainant followed up his email with a further telephone call to the Court Secretary at approximately 5.00pm (3^rdAugust 2022). The Court Secretary confirmed to the Complainant during the telephone call that the hearing would proceed on the following day (4^thAugust 2022) at the scheduled time. In response to this confirmation, the Complainant expressed his dissatisfaction to the Court Secretary. Due to the nature of the interaction the Court Secretary had to advise the Complainant that he was terminating the call. On the instructions of the Court a further email was issued to both parties advising that the hearing would proceed as scheduled and that either party could raise any issues or concerns that they had at the commencement of the hearing.



Hearing on 4^thAugust 2022:

There was no appearance by the Complainant, who is the appellant in the appeal, at the hearing of the appeal at the scheduled commencement time of 10.00am.

The Respondent side was present in the Court and was advised that the Court would wait until approximately 10.15am to open the hearing.

The Court delayed the opening of the appeal until after 10.15am, to allow some additional time for the Complainant to appear.

When the Court opened the appeal, at approximately 10.20am, the Complainant was not present to move the appeal. The Court received no contact at all from the Complainant on the morning of the hearing and no submission on behalf of the Complainant was opened to the Court.



Deliberation:

Having regard to the background to this appeal, as set out above, the Court is satisfied that the Complainant was on notice of the hearing and failed to appear before the Court to move his appeal.

The Court is further satisfied that the complainant was informed by email on 10^thMarch 2022 as to the steps that he needed to take in the event that he wished to make a formal request for a Division of the Court to recuse itself. The Complainant did not make a formal request for recusal, nor did he respond to the email of 10^thMarch 2022. The Court notes that there were numerous email exchanges between the Complainant and the Court both before and after the email to the Complainant on 10^thMarch 2022, with the final email being the previous evening advising that the hearing was proceeding as scheduled. The Respondent confirmed to the Court that they had received that email. The Court concluded that there was no basis to uphold the appeal and therefore determined that the appeal failed.



Determination:
The appeal fails. The Decision of the Adjudication Officer is affirmed.

	Signed on behalf of the Labour Court
	Louise O'Donnell
CN	______________________
15 August 2022	Deputy Chairman