ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00031921

Parties:

	Complainant	Respondent
Parties	Francis Eneas Kearney	Western People

Representatives

Self

David McCarroll Ronan Daly Jermyn Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00040559-001	13/10/2020

Date of Adjudication Hearing: 25 /11/2021 and 05/01/2022

Workplace Relations Commission Adjudication Officer: Janet Hughes

Procedure:

In accordance withSection 25 of the Equal Status Act, 2000,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The hearing of these complaints took place over two days. On the first day the parties set out their respective cases. There followed an examination of dates of the complaints; notices of the complaints as served on the Respondent; and notification of the complaints to the Workplace Relations Commission (WRC). In the case of the WRC, this did not require much examination as the only date of receipt of documents by the WRC as recorded on the file is the 12th or 13th of October 2020. A detailed examination was required in respect of the notification of issues by the Complainant to the Respondent. This arose partly because the Complainant had not used any ES1 forms to notify the Respondent of his issues prior to the reference of complaints to the WRC. Neither had he used the WRC complaints form to submit his complaints to that body. For their part the Respondent denied receipt of certain email notification of complaints which were submitted to the WRC for consideration. These issues are not merely matters of administrative tidiness or technical niceties. Nor is it for the Respondent to decide which of these issues can be set aside for convenience. The requirement to place a Respondent on notice of an issue where it is alleged that they may have discriminated against a person or persons and allowing them the opportunity to respond prior to the referral to the WRC is a requirement under statute. Where a notice is served, and no reply is received, that failure may be taken into account by an Adjudication Officer in arriving at a decision. There are related time limits both for the serving of the notifications on the Respondent and of the intention to refer a matter to the WRC and further time limits regarding the submission of complaints to the WRC. While neither the ES1 or the WRC complaint forms are statutory forms, notification remains an issue which has a direct bearing on the decisions to be made by an adjudication officer including whether that adjudication officer has jurisdiction to hear the complaints or the extent to which the adjudication officer may make allowances regarding time limits.

Some progress and clarity were achieved on the day of the first hearing which was then adjourned to allow the Complainant to provide the necessary information from his own records principally emails which he would have submitted either to the Respondent or the WRC. At his request I sent a note to the Complainant setting out the record of dates of complaints which he had provided based on the discussion at the hearing and the event associated with each date. He was invited to provide any evidence of notifying complaints to the Respondent and also to the WRC prior to the recorded date of receipt of 13 October 2020. As I had done so at the hearing, I referred the Complainant to the WRC guidelines on time limits under the Equal Status Acts and then outlined the procedure which would be followed at the resumed hearing. Subsequently the Complainant provided a number of documents on the 30th of November 2021. Notification of the resumed hearing was issued on the 26th of November 2021 to take place on the 5th of January 2022. This latter point is made because at the resumed hearing the Complainant indicated that he had not received any formal notification of the date of the resumed hearing which had been notified verbally to the parties at the conclusion of the hearing in November.

Trying to elicit exact information on the first day of hearing was quite difficult with claims and counterclaims, references to deleted emails and counter evidence of confirmation of receipt of emails. Prior to the commencement of hearing in November the Complainant was agitated to the point of objection to the presence of a legal representative for the Respondent and /or the failure to notify him that there would be a legal representative. During the hearing he further questioned the role of the legal representative including why for example he was not placed under oath or affirmation. I had to correct the assertion by the Complainant that I am employed by the WRC and/or part of PRU as his assertions might imply some form of bias on my part.

On the first day it was clarified with the Complainant that he was not seeking anonymity in the Decision but asked that personal medical experiences which he spoke about on the first day of the first hearing would not be contained in the Decision and he was reassured on this point.

In tandem with providing the information regarding documents as discussed at the initial hearing on the 29th of November 2021 the Complainant again raised the issue regarding the solicitor not required to take an affirmation, a contribution by the person appearing on behalf of the Respondent on the first day and why he was not under oath at the time; a request that a named person would attend the hearing and be questioned under oath. This latter point was raised at the first hearing and dealt with where I advised the Respondent’s solicitor that it was a matter for his side who appeared as a witness but that in the absence of the witness I may be obliged to rely on the better evidence. It should be noted that this witness did appear at the resumed hearing and there are further references to her attendance in this section under procedures due to assertions made by the Complainant in correspondence following the second and final day of the hearing.

On the 10th of December 2021 the solicitor on behalf of the Respondent sent a letter on the matter of the receipt or otherwise of emails.

This matter is addressed further in the chronology of dates and events, but the extract did contribute to the decision to address both parties in an opening statement at the resumed hearing that, as the adjudication officer, the matter of procedures and the conduct of the hearing are matters for the undersigned to decide, and not the parties. The relevant extract from the letter:

Our client accepts that he responded to two of the emails, as set out within the mails now

furnished, which clearly demonstrates that he received the emails in the first instance to have

responded.

- With regard to the others, to simplify matters and help with the progression of the case, our

client is prepared to concede proof of receipt by them. It is therefore a matter for the

Adjudication Officer to draw her own conclusions as regards notification and time limits.

Further correspondence regarding procedures was submitted by the Complainant on the 1st of January 2022. The WRC office did not reopen until the 4th of January and the staff member to whom it was addressed was on leave and did not see the email until the 7th of January - following the hearings. In that correspondence the Complainant restated his issues which he wished to have addressed regarding the conduct of the previous hearing and the attendance of the named journalist as a witness. At the resumed hearing the Complainant criticised the lack of response to his letter of 1 January and was informed that I would not have engaged in procedural matters regarding the conduct of the hearing in writing. My response was based on the comments made by the Complainant in correspondence in November-and would not have altered even if I had received the January 1 document prior to the hearing.

Given the correspondence from both parties on procedural matters and in particular the issues being raised by the Complainant; a concern that he did not fully comprehend the nature of the process under the Equal Status Act, the right of legal or other representation at such hearings and the manner in which decisions would be made based on facts in the context of the legislation and my own independence in arriving at decisions, I found it necessary to explain all of these elements to the parties and most particularly to the Complainant. Given his evident displeasure at the Respondent having legal representation while he was unrepresented, I advised the Complainant that almost fifty per cent of parties are unrepresented at hearings in the WRC and then advised him of various bodies who do provide representation at hearings from time to time without any cost i.e. Citizens Information Services; Irish Human Rights Commission; Free Legal Aid Centres and solicitors who will act pro-bono. I offered to adjourn the hearing if he wished to see if any of those suggested would be willing to provide him with support. The Complainant replied to the effect that he had explored most or all of those options and was unable to secure any representation. On the basis of that reply there was no value in an adjournment to allow the Complainant the opportunity to obtain the services of any of those listed.

The Complainant again raised the question of the conduct of the first hearing and the contributions made by Mr Laffey at that hearing when I was trying to establish what documents were sent to the Western People in circumstances where they were denying receipt. The Complainant continued to be unhappy and protest at the conduct of the initial hearing in spite of explanations and assurances given to him regarding evidence and what contributions would and would not be taken into account. At that juncture I offered to recuse myself from the hearing and to arrange to have another adjudication officer appointed to hear the case. The Complainant described the discussion around the emails at the first hearing as ‘messy’ with which I cannot disagree in the circumstances. A break was allowed to the Complainant to consider the offer of removing myself from the hearing given his dissatisfaction. After that break the Complainant indicated a willingness to go on.

The hearing then proceeded with a chronology of dates and events which I had prepared based on the material provided by the Complainant again trying to clarify some of those dates/ events associated with the complaint items.

The hearing then moved to evidence under oath from Mr Kearney the Complainant, Mr Laffey, the Editor of the Western People, and Ms Orla Hearns, the journalist whose attendance Mr Kearney had sought for the hearing. The Complainant put questions to the Respondent witnesses. The Respondent Solicitor declined to put questions to the Complainant. I put questions of clarification to all witnesses. Before the conclusion of this second hearing of four hours duration give or take, the parties were given a break and an opportunity to produce any further information or evidence to the hearing and/or in the alternative to confirm if they were satisfied that they each had received the opportunity to make their case. The Complainant’s initial response was that it would depend on the outcome. He was informed that the process and the decision were two separate matters and that any party who was dissatisfied with the decision could appeal it to the appropriate body. The question to the parties was whether they were satisfied they had received the opportunity to present their case. The Respondent’s solicitor responded in the affirmative. The Complainant replied to the effect that, “There is no more can be said.” On the basis of the responses of the parties to the question put, I informed the parties they had provided a lot for consideration and the hearing concluded.

On 17 January 2022 the Complainant wrote again to the WRC providing documents which neither side had available at the hearing, but which were not requested from either side at the conclusion of that hearing. In a nine page document, the Complainant again included further references to the first day of the hearing as outlined above and then went on to describe the evidence of one of the witnesses on the second day as perjury; he objected to a medical report he had provided on the second day being given to the Respondent’s solicitor at the hearing; he accused one witness for the Western People of placing the other witness under pressure to tell lies. Stating that he was not in a fit state to deal with documents he made an extensive written submission on the substance of his complaints. Also included was a definition of freedom of expression by reference to the Constitution. Most peculiarly he referred to my being ‘under time constraints and had tofinish the hearing on the day’ – as though the hearing which commence at 11 20 or so and concluded at 3.40 or so was rushed in some way.

None of the unsolicited material provided by the Complainant on 17 January and outside the hearing process is taken into account in arriving at decisions in this case. To do so would represent an abuse of the hearing process. I am absolutely satisfied that both parties had the opportunity over the best part of seven hours, with correspondence and clarification provided between the hearings when requested with breaks to consider key procedural issues to present their case and neither party expressed a different position at the hearing, when the question was put, and they were given a break to consider their response. The submission of a nine-page document post the hearing can be most kindly described as opportunistic.

The detail contained in this procedural section of this document is more expansive than usual. That it is so extended is for the very reason that they indicate the extent of engagement with the Complainant, explaining procedures, endeavouring to accommodate and support him to the limit possible in making and clarifying his case, to be met with repeated and expanded complaints or remarks about every other person appearing at the hearing, be that the adjudication officer, the legal representative or witnesses.

In his correspondence following both days of the hearing-Mr Kearney refers to his physical and other health difficulties in coping with the hearing process. He referred to his vulnerabilities and other disadvantage. Acknowledging without question that the Complainant self-evidently has disabilities and it is most unfortunate that he was unable to manage the remote hearing process on, I believe it was two previous attempts by him and the WRC, the Complainant has nonetheless managed, according to his own contribution at this hearing, -to make complaints against many organisations without any support. Along the way he has provided documents to the WRC in this case which show that he is well able to set out the basis of his complaints and he proved well able to raise any issues he had at and between the hearing dates. On the first day he was able to recount points from an earlier hearing with another adjudication officer where he had attended against a different Respondent. In terms of legislation he has navigated the Equal Status Act, referenced perjury-an offence under other legislation also citing his constitutional rights-and, as is his right, challenged the conduct of the hearing in a fashion that would do credit to any representative. The Complainant tends to underestimate his abilities and achievements from my observation and experience over two days of hearing and reviewing his documentation. In making this observation a distinction is to be drawn between having the capacity to make his case, and whether those interventions and opinions of others are valid and reasonable. As with most individuals or representatives, some are accepted as reasonable, and others are not.

The Decision in this case is made by the undersigned on the available facts applied to the legislation just as was explained at the hearing. In light of the strong allegations against the Respondent witnesses made by the Complainant in writing post the hearing, I feel obliged to add that I saw no basis for concluding that lies were told, or perjury committed by any person at the hearing as later alleged by the Complainant. People’s memories may differ on certain events in this case but nothing I saw or heard on behalf of the Respondent gave rise to a concern on my part as the Adjudication Officer, that a potential criminal offence may have occurred.

Background:

The complaints referred to the WRC are all concerned with the refusal of or the manner of providing a service sought by the Complainant. The Western People is a Ballina based publication which provides two type of services to the public -paid advertising and the publication of press releases or other articles which are submitted by members of the public and other entities or organisations.

Medical Negligence Ireland is an entity apparently formed by the Complainant and of which he is the administrator. MNI has a Facebook page and followers. On an HSE Stakeholders page provided by the Complainant MNI is described as: ‘a platform for people to have their voices heard as regards theirhealth and other related issues. M.N.I. aim to promote a safer health service in Ireland where there will be accountability and open disclosures at all levels in health service in Ireland.’

The complaints are made under the Equal Status Act on grounds of discrimination related to age and/or religion and/or disability.

The Parties are named personally or using the generic terms of Complainant or Respondent as appropriate.

Summary of Complainant’s Case:

The Complainant gave an account of various occasions when he experienced discrimination. These were also covered in a document dated 07 September 2020 submitted to the WRC on 13 October 2020 and supported by his evidence over the two days of the hearing.

Firstly, in relation to his personal issues (unspecified dates) when he engaged with the journalist Orla Hearn at the office of the publication.

Secondly when he was willing to pay for an advertisement for Medical Negligence Ireland but, unlike other publications in the area, Western People refused to print it. (August 2019). He did not recall being contacted by the advertising manager to explain why the advertisement was not published -he recalled going to the office when he was then told it would not be published.

Thirdly when he approached Orla Hearns with photographs and a report about the conditions in the ED at Mayo General Hospital she took his material and promised to get back to him. When he went to the office a couple of weeks later she informed him that she had contacted the HSE and an article had been published. His complaint was that she had promised to get back to him before the article was published and had not done so-and that she should have consulted him about the proposed article which had appeared in a format which he would not have written (December 2019). The Complainant rejected the journalist’s evidence that she had not promised to contact him again before the article was published. He was prepared to take a lie detector to prove he was telling the truth. She had not provided him with a copy of the article when he called to the office-he received it from a neighbour. When he said to her that she had promised to get back to him after she had contacted the HSE/HIQA and to consult him about the final article-she had replied to the effect ‘that’s not the way we do things around here.’ He had tried to explain about his deafness on that day as he was not wearing a hearing aid. He described her response as ‘ruthless and in noways empathetic.’

He provided a letter to the Editor James Laffey about his issues in January 2020 at which point he first referenced the Equal Status Act. When he received no reply to his correspondence including the reference to the Equal Status Act, he sent a reminder on 19 February at which point he received a reply rejecting his complaints indicating any complaints about staff would be defended.

The Complainant made a complaint to the Press Ombudsman about the refusal to publish the advertisement in August 2019; the article published in December 2019 and previous refusals to publish his articles and the treatment of him by Orla Hearns regarding the publication in 2019. As part of that process he received a copy of the statement submitted by the Editor on behalf of the Western People. His complaint to the Press Ombudsman was not upheld.

Fourthly the statement made by the Editor to the Press Ombudsman (March 6, 2020) was the subject of a complaint. That statement was very hurtful where Mr Laffey had stated ’a view was formed that it would be inadvisable for the Western People to encourage our readers -particularly vulnerable, elderly people within our community……to submit personal and deeply sensitive material to an unregulated organisation such as MNI which has no statutory or professional remit to investigate matters of medical negligence in Ireland.’ The Complainant spoke about the ongoing hurt he felt because of those statements, referring to himself as a person who had supported vulnerable people in the past often out of his own pocket. There was a contradiction he said, between making these statements about MNI and then publishing an article when he provided a press release a few months later.

The Complainant made two further complaints regarding the refusal of the Western People to publish press releases he had submitted in June/July in relation to a named and recently deceased individual well known in the cervical cancer screening campaigning in relation to that issue and also a press release about a named medical organisation.

The Complainant did not respond at the second hearing in any detail to the submission of the Respondent which he had received prior to and at the first day of hearing. He did however say on the first day that his complaints were made by him as an individual which he reiterated on the second day. This is in response to the Respondent submission regarding the status of the Complainant to make his complaints under the Equal Status Act.

The evidence of Orla Hearns that she had not and could not and did not promise to get back to him after contacting the HSE or that he would have a say over the final article was rejected by him.

He questioned the religion of the witnesses, stating that he is a Catholic.

In response to questions of clarification the Complainant confirmed that is not a regulated entity. Asked whether there are rules for the entity he relied there must be as sometimes people object to things that are done. A woman in Limerick has sometimes helped him with administration.

In relation to the grounds of the complaint he clarified that the grounds of disability age and religion apply to each element of the complaint. The Complainant gave his age, religion and verbal and medical evidence of his disabilities. In response to Orla Hearns evidence that she was unaware of his disabilities-the Complainant said that she had read the previous material he had provided in connection with his own case. She was aware of his medical issues and therefore he had disabilities.

The following is the chronology of dates and documents from a detailed examination of the material provided.

Timeline

The dates and documents in this chronology take account of the material provided by the Complainant and other contemporaneous documentation in determining the timeline and sequence of events.

20.01.2020 FK to JL Document of complaint of discrimination – reference to previous refusals to publish articles on several occasions and also re the article published on 2 December 2019 -the letter provided by the Complainant, and the treatment of him by Orla Hearns. There is no time line for an email which indicates that this document was sent to JL-however he refers to receipt of such a document in his submission to the Press Ombudsman. There is no reference to the Equal Status Act in the document provided.

I am inclined to think that there was an overlap in complaints and responses around this time as between the Complainants intention to notify the Respondent of a potential complaint under the Equal Status Act and the complaint to the Press Ombudsman. Whatever the gap in documentation, while no evidence was presented to the hearing of a document dated 20.01.20 being sent to James Laffey, based on his own submission to the Press Ombudsman it has to be accepted that this document was received by James Laffey.

19.02.20 @ 18.10 FK to JL Refers to correspondence dated 20.01.20-and the time limit for a reply and the intention of forwarding a complaint to the WRC-reference to Equal Status Act if no reply is received within two days. This email also refers to a complaint to the Press Ombudsman.

19.02.20@18.17 JL to FK replying re the email of the same day referring to the alleged treatment of him by the named journalist and denying any mistreatment of him by the named journalist or other members of staff.

21.02.2020 14.43 Complaint to the Press Ombudsman

06.03.2020 JL submission to the Press Ombudsman responding to a complaint submitted by FK on 24 February 2020. That submission is forwarded to FK.

12.03.2020 FK writes to the Press Ombudsman criticising the submission of JL to that Body.

24.05.2020 FK Letter to JL detailing a complaint under the Equal Status Act 2020. The issues of complaint were: a refusal to place an advertisement for Medical Negligence Ireland (August 2019);the statements made by JL about Medical Negligence Ireland in his submission to the Press Ombudsman; publishing an unsigned an unedited article without his permission(December 2nd 2020); treatment of him by the named journalist in the offices of the Western People in relation to the December 2nd article, described as ruthless and in no way empathic; publication refused of different previous articles involving himself. Allegation of discrimination on grounds that ‘I am a deaf disabled elderly pensioner both physically and mentally, uneducated and from a poor background and from a different class Society.’

As there is no time line for an email or other date mark which indicates that this communication was either sent to or received by JL, there is no evidence it was sent to JL.

19.06.2020 MNI to whom it may concern with a -proposed press release re Medical Council calling for a public inquiry into that body and it be suspended pending that inquiry. This was sent to the Western People.

25.06.2020@09.31 JL to FK suggesting the article re a medical organisation is more suitable for a national publication. This reads a response to the email dated 19 June re the named medical body but sent on 25.06 to Western People.

26.06.20 Proposed press release sent to another publication.

03.07.2020FK to JL@09.33 stating that he had promised a lot of people ‘that article’ would be published and saying he might have the courtesy to respond. There is no subject.

16.07.20@ 13.38 FK to JL email-Complaint Under Equal Status Act-complaint on grounds of disability and vulnerability for the failure to publish article -press releases from late June into July and slanderous statements about MNI.

21 July 2020 FK article re RM for publication. The refusal to publish this article forms part of the complaint submitted to the WRC on 13 October 2020.

Note: there remains some confusion around the dates in this sequence. However, it is accepted that the Complainant was referring to the refusal to publish two articles calling for public inquiries on two separate subjects and that condolences on the death of a named person was also a part of that sequence.

07/09/2020 Letter setting out details of complaints against the Western People re various items including refusals to publish articles(undated) the advertisement submitted in August 2019, the publication of December 2019; the submission to the Press Ombudsman of March 6th, 2020 and the articles in June and July 2020 which were not published by the Western People. This is the document provided to the WRC on 13 October 2020 and which sets out details of the complaints against the Western People-the complaint document. Although headed ‘Dear James’ there is no evidence that this document was sent to the Respondent by FK.

12 October 2020 first record on the case file ADJ J00031921. Engagement by WRC with FK where he is asked if he wishes to make a complaint against the Western People and for the contact details for that Respondent. FK responds confirming the name of the Respondent and provides contact details.

13 October@ 22.04 FK to WRC email with attachments. He wrote ’This complaint was sent before to your office with form C2 and mislaid in your office.’ There is no email providing support for this statement regarding the submission of an earlier document regarding the Western People and neither was one provided at the hearings of the complaint although it was made clear to him that the date for receipt of the complaint according the WRC and therefore the file provided to the Adjudication Officer was October 13th, 2020. He was offered the opportunity to provide evidence of an earlier date for the submission of the complaint to the WRC between the first and second day of hearing and did not do so.

Summary of Respondent’s Case:

The Respondent made a written submission based on the available material prior to the first day of hearing which was read on the first day.

A summary of the key grounds on which the complaints were rejected is as follows in the order of the submission:

Documentation-many of the key documents together with other relevant material submitted by the Complainant were not addressed to the Respondent and were not received by them.

Regarding the advertisement in August 2019, the Respondent reserves their rights in full on the question of whether any advertisement or a press statement shall be published. That advertisement was quite clearly an advertisement for MNI and not the Complainant personally -he is not mentioned in the text at all. The refusal to publish the advertisement was decided after legal advice following consultation with the Editor. In addition to the points made to the Press Ombudsman a concern existed as to what MNI as an unregulated entity might do with the data sought from readers. That decision related to the organisation MNI not the Complainant personally and had nothing to do with his age religion or disability. The Complainant was informed that if he was dissatisfied he could complain to the Advertising Standards Authority.

Regarding the article published in December 2020, the Complainant attended at the offices of the Western People where he met with Ms Hearns and gave her a copy of a printed press release. He explained that he felt compelled to write the article after witnessing the conditions at Mayo General Hospital over a number of weeks. Ms Hearns took the press release or a copy of it. She also asked for his phone number in case she needed to contact him further-this would be standard practice. Working with the press release and following her own enquiries she had an article on the subject published on December 2nd, 2019. Again, the Complainant was not mentioned in the article-only MNI.

Some weeks late the Complainant attended at the office again and there followed exchanges regarding the article, the failure to consult him about the final article and the failure to contact him before an article was published. During that meeting the Complainant referred to his deafness as he was not wearing his hearing aid so could not follow the conversation. It is acknowledged that Ms Hearns became exasperated about dealing with a complaint that had not been read while simultaneously being asked how to share the advertisement on social media. He was informed that if he was still dissatisfied after reading the article he could complain to the Editor.

There followed a complaint on January 20 and an investigation by the Press Ombudsman.

It is not clear how the Complainant is seeking to link himself to the article and an allegation of discrimination-the article does not even mention him by name.

Regarding the complaint about Mr Laffey’s statement of response to the Press Ombudsman-the Complainants response to that statement was that is was slanderous and defamatory and even if that were the case-which is denied-that would not and could not amount to less favourable treatment of Mr Kearney personally. No case was made out which established that the actions of the Respondent in this aspect of the complaint were linked to any of the discriminatory grounds or even less favourable treatment of him.

Refusal to publish press releases in June/July 2020.

It was previously explained to the Complainant that the Respondent could not publish articles by MNI where the Body against whom allegations were made which allegations were the subject of formal proceedings under a complaints procedure. This applied to the press release about the named medical body.

Regarding the tribute press release, the Respondent reserved the right not to publish articles and cited a constitutionally guarded right to freedom of speech in that regard.

In the past the Respondent had published advertisement and articles mention the Complainant indicating no bias towards him. He never had the right to sign off on any previous article.

Regarding the set of complaints referring to previous articles which it is acknowledged were not published-for the same reason as the article about a medical body-that the issues were subject to formal proceedings at the time --the Complainant had provided no substance, names or particulars names or dates for these.

In summary the Complainant had not provided any prima facie evidence to support his complaints. Case Law was cited in support of this contention related specifically to the requirements of section 38A of the Equal Status Act. It is not sufficient for a Complainant to cite or allege a protected ground and then reference a treatment complained of-something more is required to show a link between the protected ground and the treatment complained of.

The Complainant has failed to provide any evidence of how he was treated less favourably than a comparator-a person of another age ability or religion.

The Respondent went on to address issues of time limits as they are set out in Section 21 of the Act in terms of both notices to the Respondent and the referral to the WRC stating that the Complainant had failed to comply with the terms if Section 21 and no application was made to the Director General for extensions based on exceptional circumstances. Case law was cited in support of this part of the response.

Regarding his standing to make the complaints, it was submitted that the Act quite specifically addresses less favourable treatment of persons and not entities. It was on behalf of MNI and not Mr Kearney that press releases were issued but not printed; the article about the local hospital was in the name of MNI. It was MNI and not Mr Kearney that were refused. Under definitions entities like MNI (or the Respondent) are deemed persons in that they can be held liable for breaching the Act, but they are not deemed persons for the purposes of being the subject of discrimination.

Summary of Respondent Witness Evidence Under Oath

Generally speaking the evidence of this witness when questioned by his representative was consistent with the submission on behalf of the Respondent representative. He confirmed that editorial control rested with him and the publication not those who submitted articles.

When asked if he had ever met the Complainant prior to these events he replied no. He would have seen him in the office from time to time.

On specific aspects of the complaints he reiterated the concerns about the advertisement of August 2019. Asked how the decision was conveyed to the Complainant he replied that it was his understanding that this was done by the advertising manager who was dealing with the issue. He said that they were also concerned about any liability if they facilitated a request for confidential medical information to be passed to an unregulated body.

Asked how he had investigated the complaints made by the Complainant he said he spoke to the journalist in the office.

Asked whether there was any occasion when a person or organisation had a say in the wording of an article he replied only when a paid advertisement was involved or a paid sponsored article.

Regarding the refusal to publish the condolences press release-he explained that as the person in question was not from Mayo it would not be something they would publish. Had she been from Mayo it may well have been published. Responding to a statement by the Complainant that the article was published in the Limerick Leader -he replied that the person in question was from Limerick.

Summary of witness evidence Orla Hearns

The witness confirmed that she had met with the Complainant on two or three occasions prior to November /December 2019 when he sought to have issues around his own medical situation published. She had explained to him that while those proceedings were ongoing they could not publish articles as he requested on those occasions. Once rulings were issued they would be happy to consider articles. In those dealings with the Complainant she found him to be a gentleman a gentle mild-mannered man.

She said she was not aware of the specifics of the Complainants disabilities or his age or religion.

She had no direct involvement in the advertisement of August 2019.

When the Complainant provided the material for an article about conditions at the general hospital she was glad to be able to assist him. She rejected any claim that she had promised to contact the Complainant after she spoke to the HSE/HIQA. Whatever misunderstanding there was about further contact she said that she could not have offered the Complainant then or at any stage a right of reply or a final say on the article to be published. She had never given anyone the final say on an article - she had no authority to do so and did not do so in relation to the Complainant.

On the day when they spoke about the article after it was published she is not sure he spoke about the right to sign off on the article it was about getting back to him after he spoke to HSE. He was surprised and upset that she did not get back to him, he said that she was supposed to do so. She did say, that’s not the way we do things around here. Mr Kearney did explain he could not hear her very well, that he had no hearing aid and did not have his glasses with him. He did struggle to hear her, and she did raise her voice. Her recollection is that she did give him a copy of the article to take away with him.

Findings and Conclusions:

Definitions for the purposes of jurisdiction

Before addressing any issues of substance including where relevant, the matters of notifications and time limits which arose in this case, it is necessary to address those issues which relate directly to the jurisdiction of the Adjudication Officer to decide on the substance of the complaints.

Service provided by Western People

“service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

5.— (1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

The Western People is a newspaper based in Ballina County Mayo which offers the facility of paid advertising to the public generally and also the opportunity to have press releases published or to provide information which forms the basis of articles. The title of the newspaper indicates that it part of what are generally known as regional newspapers. As a newspaper all of the publication is subject to editorial control. For the purposes of the definition of a service the opportunity to place paid advertisements and to submit for publication press releases or other articles are services generally available to the public apparently mainly in the geographical vicinity i.e. Mayo.

In principle therefore, the nature of the services provided by the Western People fall within the scope of the Equal Status Act.

Definitions under the Act include:

Discrimination (general).

3.— (1) For the purposes of this Act discrimination shall be taken to occur —

(a) 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 specified in subsection (2) or, if appropriate, subsection (3B) (in this Act referred to as the ‘discriminatory grounds’) which —

(i) exists,

(ii) existed but no longer exists,

(iii) may exist in the future, or

(iv) is imputed to the person concerned,

(b) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph (a), constitute discrimination,

(c) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.

The Complainant alleges discrimination as defined in the Act on three grounds: age religion and disability. There is no dispute that he does have disabilities for the purposes of the definition. The grounds of age and religion are disputed.

Status of the Complainant to bring a complaint under the Act.

Reference to an organisation, entity or public body

“person”, as that term is used in or in relation to any provision of this Act that prohibits that person from discriminating or from committing any other act or that requires a person to comply with a provision of this Act or regulation made under it, includes an organisation public body or other entity”

Essentially the Respondent position is that the complaints submitted to the WRC were submitted by MNI. As an organisation or other entity, MNI can be the subject of a complaint but is not a person for the purposes of being the subject of discrimination on the grounds of disability, age or religion being the grounds cited by Mr Kearney.

While the issues of notices and timelines and the detail of the events and arguments about what was and what was not said and by whom on different occasions were all explored comprehensively at the hearing over the course of the two days, this matter, i.e.-the status of the Complainant, is one on which I have reflected carefully and cautiously, conscious of the fact that any finding which favours the Respondent on this point would render any further consideration of any or all of the matters raised by the Complainant null and void.

Having examined again the statement of 07/09/20 submitted to the WRC by Mr Kearney the following phrases are used in relation to the related elements of that document:

‘a refusal by James Laffey…to advertise for Medical Negligence Ireland’

‘Extreme defamation of my organisation’

‘M.N.I is a health and safety organisation’

‘Any healthy and safety organisation needs media coverage’

These extracts relate to the complaint regarding the refusal to publish an advertisement in the name of MNI in August 2019. From the forgoing it is self-evident that in seeking to place the advertisement in August 2019, Mr Kearney was representing MNI -an entity and not a person for the purpose of the Equal Status Act. An entity cannot have a personal age, religion or disability for the purposes of discrimination under the Act. The conclusion is that the complaint regarding the advertisement refused in August 2019 relates to an entity not a person and as such, that an adjudication officer does not have jurisdiction to take this aspect of the complaint further to the point of arriving at further findings or making a decision on the substance of this aspect of the complaint. This aspect of the complaint is therefore not well founded.

‘Defamation of me and my organisation in a letter which Mr Laffey wrote to the Press Ombudsman on the 6/3/20 Paragraph 1.’

‘As you can see in this…describes Medical Negligence Ireland as an unregulated organisation which has no statutory or professional remit to investigate matters of medical negligence in Ireland,’

Here, Mr Kearney is complaining about the characterisation of MNI to the Press Ombudsman -an entity and not a person for the purpose of the Equal Status Act. An entity cannot have a personal age, religion or disability for the purposes of discrimination under the Act. The conclusion is that the complaint to the Ombudsman regarding the comments made by Mr Laffey about MNI and the explanation for refusing to publish the advertisement in August 2019, related to an entity not a person. As such, an adjudication officer does not have jurisdiction to take this aspect of the complaint further to the point of arriving at further findings or making a decision on the substance of this aspect of complaint. This aspect of the complaint is therefore not well founded.

3. Part 1

‘publishing an unsigned and unedited article without my permission or final consent’

The photographs and concerns about the conditions in the ED in Mayo General Hospital were brought to the Western People by Mr Kearney personally but acting on behalf of MNI. This is reflected in the published article which refers to MNI as ‘a Western-based campaigning group called Medical Negligence Ireland’ and ‘MNI claims there was virtually no improvement in the conditions over the three visits’

Here, in the first part, Mr Kearney is complaining about the publication of an article and information provided by him in the name of MNI -an entity and not a person for the purpose of the Equal Status Act. An entity cannot have a personal age, religion or disability for the purposes of discrimination under the Act. The conclusion is that this aspect of the complaints relates to an entity not a person and that as such, an adjudication officer does not have jurisdiction to take this aspect of the complaint further to the point of arriving at further findings or making a decision on the substance of this aspect of complaint. This aspect of the complaint is therefore not well founded.

Part 2

‘‘I tried to explain about my deafness and disability at the time but she was ruthless and in no ways empathic to me’

In this second part of the complaint, the Complainant is referring to his interactions with Ms Hearns when he called to the office after the article was published on a date in December 2019. As this aspect of the complaint is concerned with the treatment of him personally and not the entity MNI, it is considered further, firstly under time limits under Section 21 of the Act under item B below.

‘I approached the Western People to publish stories on discrimination involving myself on different occasions in the past which Mr Laffey confirms and have been refused by Orla Hearns and Western People. At the same time I would read similar stories on a regular basis in the Western People.’

Copies of documentation, dates, and details of these proposed articles were not provided to the hearing although it is acknowledged by the Western People that Mr Kearney did approach the Western People to have them published and was refused. In the absence of evidence to the contrary given that those issues were personal to Mr Kearney, it is reasonable to conclude that he submitted those proposed articles or other documents in his own personal capacity and not on behalf of MNI. This aspect of the complaint is considered further under item A below, firstly under the sections of the Act related to timelines for notification to the Western people and the WRC.

5. 6

‘Is a continuation of discrimination against me and my organisation by James Laffey and Western People’

‘’This involved two very serious Press Releases sent to Western People in June and July last’

‘One involved a press release about a public Inquiry…. which M.N.I. had called[for]’

‘He also failed to publish a press release on 21/07 which was an article offering condolences to….and request for a public inquiry’

Here, Mr Kearney is complaining about the refusal of the Western People to publish articles provided by him in the name of MNI -an entity and not a person for the purpose of the Equal Status Act. An entity cannot have a personal age, religion or disability for the purposes of discrimination under the Act. The conclusion is that this aspect of the complaints relates to an entity not a person and that, as such, an adjudication officer does not have jurisdiction to take this aspect of the complaint further to the point of arriving at further findings or making a decision on the substance of this aspect of complaint. This aspect of the complaint is therefore not well founded.

Complaint Items which remain to be addressed on an individual basis.

Based on the earlier findings, two items remain for decision on the basis that it is found that the matters complained of were concerned with the Mr Kearney as a person and not an entity. These are the complaint referring to unpublished articles prior to December 2019 and the interaction with Ms Hearn in the office of the Western People in December 2019. These are addressed in chronological order as items A and B for ease of reference starting with the time limits set out in the Act which arose at the hearing.

A. Refusal to publish articles submitted prior to December 2019.

Time limits under the Equal Status Act

Based on the forgoing findings, item 4 - articles unpublished prior to December 2019 is for consideration under Section 21 of the Act-time limits.

‘I approached the Western People to publish stories on discrimination involving myself on different occasions in the past which Mr Laffey confirms and have been refused by Orla Hearns and Western People. At the same time, I would read similar stories on a regular basis in the Western People.’

Redress in respect of prohibited conduct.

(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, 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.

That the Complainant did meet with Ms Hearns about those articles is not disputed by the Respondent. There are however no dates when the relevant documents and issues were presented by the Complainant and therefore no timeline can be established for reference under Section 21 (1) to (3). The earliest document from the Complainant on this matter and referencing discrimination refers to ‘the past number of years’.in his submission to the Press Ombudsman, Mr Laffey refers to Ms Hearns consulting him when Mr Kearney called to the offices of the Western People ‘over the past two or three years.’

Based on these respective descriptions of the timelines, it is reasonable to conclude that these events occurred well outside the two months period provided for in subsection (a) or even the four-month period provided for in subsection (3). In arriving at this conclusion, the absence of clarity or documents related to this aspect of the complaint is relevant but so also is the passage of time after Mr Kearney evidently received an explanation from Ms Hearns for the refusal to publish the articles and he made no complaint about her refusal or explanation until the matter of what was published in December 2019 arose. The facts do not provide exceptional or other grounds for extending the timeline as provided for under the Act for a period which is unspecified and unquantifiable.

(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.

In summary on this aspect of the complaint, Mr Kearney has failed to meet the requirements of Section 21 (1) – in terms of notification of the nature of and potential for a complaint under the Equal Status Act and an opportunity to respond within specified timelines. As such, I have no jurisdiction to consider the matter further by way of findings or a decision on the substance of this aspect of the complaint. This aspect of the complaint concerned with a refusal to publish articles prior to December 2019 is not well founded

B. Complaint regarding the treatment of him by Orla Hearns at the offices of the Western People in December 2019.

Time Limits under Section 21-Notification to the Respondent.

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

(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,

Neither party could provide an exact date for the meeting in December 2019 -a few weeks later being the nearest indication. The chronology analysis shows that the Respondent was on notice of a potential complaint of discrimination in January and again on 19 February where the Equal Status Act was specifically mentioned. Strictly speaking the February notice is the first notice which complies with the requirements of Section 21 (2) in relation to this aspect of the complaint. This may fall a few days outside of the initial two-month period specified in subsection (2)(a). However even if this were the case an extension of that initial time limit is provided for in subsection (3) (a) as follows:

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

The reference to the Director General is to be read as the Adjudication Officer once the complaint is delegated from the former to the latter. The period of up to four months is allowed in this instance due to the failure of the Respondent to reply to the correspondence of 20 January 2020 where reference was made to discrimination allowing for the absence of a precise date on which the event occurred.

The second element of the time limit to be considered is that of the date of referral of the complaint to the WRC. Section 21 (6) refers.

(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

The first record on the file in the WRC of receipt of a complaint from the Complainant is 12 October 2020, with the file established on 13 October 2020. The Respondent replied to the notice containing a reference to the Equal Status Act on 19 February 2020. A period of over 9 months elapsed between the serving of the notice and the referral of a complaint to the WRC-outside of the time limit allowed for in section 21 subsection 6(a). Allowing that it is open to an adjudication officer to extend the period of six months for a period up to twelve months for reasonable cause, I decline to do so in this instance. The Complainant in his own email of 19 February 2020 to the Respondent referring to the absence of a reply to the communication of 20 January 2020 stated, ‘If I have no reply in the next two days I will be forwarding my complaint under equal status act to work place relations commission I discussed procedures with them today.’

It is clear therefore that the Complainant was aware of the procedures and the option to refer his complaint on this specific aspect to the WRC. He chose not to do, proceeding to refer a complaint to the Press Ombudsman which also included reference to the meeting with Orla Hearns in December 2019. In an email following the hearing day in November, the Complainant did refer to the time limits issue which was raised on the first day. In that email he refers to his notification of a complaint under the Equal Status Act to the Respondent on 16 July 2020-relating that date to the submission of the complaint to the WRC in October and therefore within the six-month period allowed for under subsection (6)(a) of the Act. Even if consideration were to be given to a double date notification process, that email of 16 July 2020 makes no reference to the meeting with Orla Hearns in December 2020. That notice refers to ‘the failure of … Western People ballina to publish article -press release from late June into July into July for ….and for slanderous remarks about Medical Negligence Ireland’.

In the circumstances, there is no reasonable cause for an extension of the time limit of six months contained in section 21 (6)(b) for the complaint concerned with the meeting between the Complainant and Ms Hearns in December 2020 and, as such I have no jurisdiction to provide findings or a decision on the substance of the complaint. This aspect of the complaint is not well founded.

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.

Having examined each complaint made by Francis Eneas Kearney against the Western People, I find that none are well founded under the Equal Status Act 2000 as amended for the reasons set out in each instance.

Dated: 17/02/2022

Workplace Relations Commission Adjudication Officer: Janet Hughes

Key Words:

Complaint of discrimination based on age, disability and religion. Status of the Complainant under the Act. Time lines for notification to the Respondent and the WRC.