ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00033815

Parties:

	Complainant	Respondent
Parties	Roberto Alamazani	Dunnes Stores

Representatives

self

Elaine Kelly Byrne Wallace Law Firm/Mairead McKenna BL

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00044679-001	17/06/2021

Date of Adjudication Hearing: 07/06/2022

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 79 of the Employment Equality Acts, 1998 – 2015following 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.

Background:

The complainant lodged a complaint against Dunnes Stores Cornelscourt on the 17th of June 2021.

This is a complaint for discriminatory dismissal under Employment Equality Act 2015 against Dunnes Stores Cornelscourt. During his employment in one of the Respondent’s store in Cornelscourt, Bray Road, Cabinteely; it is alleged that he was subject to unprecedented discrimination, unfair treatment, harassment, victimization, bullying and intimidation, including viciously shouting at him, threatening to fire him if he not attend a meeting while he was sick, forcing him to work [in unacceptable conditions] in a food freezer that the temperature goes down to over minus 50 (- 50) degrees without giving him appropriate gear needed to work accordingly, using profanity while talking to him, trying to force him [several times] to work without face covering during COVID-19 pandemic, etc. by the Respondent’s managers.

The most recent date of alleged discrimination was detailed as 24th of December 2020. He alleged this unfavourable treatment was based on race and gender.

A hearing was arranged for the 7th of June 2022 and the parties were notified of that hearing date on the 21st of April 2022.

On the 26th of July 2021 the complainant was requested to provide the following:

Dear Mr Alamazani

I refer to previous correspondence in relation to the above complaint.

Constructive Dismissal / Employment Equality /Statement Reminder

A detailed statement is required from the Complainant in all employment equality cases and in all complaints of constructive dismissal when submitting the complaint form.

If your statement has not been submitted, you should attend to same as soon as possible. Failure to provide the written statement in advance of the hearing may impact directly on the hearing and may give rise to delays and additional costs to the parties. Furnishing substantial hard copy documentation for the first time on the day of the hearing should be avoided as it is unfair to the adjudicator and the other party.

The statement should be short and concise and contain: -

a) A summary of the factual background to the complaint,

b) A summary of the evidence to be adduced by, or on behalf of, the parties,

c) A summary of any legal arguments that may be relied upon in the course of the hearing, appending case law where appropriate,

d) Where relevant, the number and details/names of witnesses that it is proposed to call at the hearing.

This letter also referred the complainant to the following:

Your attention is drawn to the Commission’s “Procedures in the Investigation and Adjudication of Employment and Equality Complaints” which may be accessed ….”

Those procedures state the following concerning Equality complaints:

7. Documentation to be Submitted 15 Working Days in Advance of a Hearing: It is very important that both sides submit all the documentation upon which they wish to rely as early as possible and no later than 15 working days before the scheduled date of the hearing. This new rule applies to all cases equally and applies to both remote and face-face hearings.8 Parties must also copy their documentation to the other parties in the case. This allows time for the Adjudication Officer to prepare for the hearing, and in accordance with fair procedures, allows the parties sufficient opportunity to consider documentation and arguments submitted in advance of the hearing. Parties are asked to copy their documentation to the other side. In addition, please note that all documentation submitted, including correspondence addressed to the WRC, will be circulated to all parties to the dispute. You have the same right to see the other side’s documentation as they have to see your documentation. Please also note that an Adjudication Officer may decide not to allow a party to introduce documents on the day of the hearing or within 15 working days of the scheduled date of the hearing. This is to ensure fair procedures for all parties. It is entirely a matter for the Adjudication Officer whether to allow any evidence to be submitted within 15 working days of the date of the hearing.

The complainant had failed to make a written submission as required up to the date of the hearing.

The respondent employer did provide a submission on the 2nd of June 2022 which was also forwarded to the complainant.

The complainant made an application for the adjournment of the scheduled hearing for the 7th of June 2022 on the basis that the respondent employer had not fulfilled the requirement to provide written statements to be relied upon 15 days before the hearing.

The adjournment application was heard by the Adjudication Officer on the 7th of June 2022, the hearing date.

Preliminary Matter

The parties were requested to raise any preliminary matters.

The respondent employer stated that no particularised written statement had been submitted by the complainant. To facilitate the investigation of the complaint they had made a submission in the absence of any from the complainant. The burden of proof and onus is on the complainant in such a case to establish a prima facie inference or presumption of discrimination. The respondent should have been provided with a written statement as required by the Workplace Relations Commission so that they could prepare for the hearing and know what was being alleged. The respondent reserved their position to call any witnesses and to take further instructions in the absence of a written submission from the complainant.

The complainant stated that the respondent was deliberately using a tactic to present a detailed and lengthy submission to surprise him, and that the lateness of the submission had taken him by surprise and offended fair procedures.

The facts show that the respondent’s submission is concise and clear and is not voluminous.

Essentially the statement denies the allegations made against the respondent.

The Adjudicator asked the complainant why he had made no written submission as requested in July 2021. He stated that he had never received the request.

The complainant was asked to explain why he had failed to put in any submission even if late as under an Equality Case he was required to put in a written statement that in turn could be replied to by the Employer. He stated that he was studying and doing exams and was also sick at a point in time. For these reasons he hadn’t put in a written submission.

The Adjudicator stated that he would reserve his position and adjourn for a brief period and then give his answer concerning the complainant’s request for an adjournment based on the reasons given under oath:

That he hadn’t received a written request from the WRC to provide a written statement.
That while he was aware of the procedure to put in a written statement, due to a number of reasons including the fact that he was studying and sick at a time, he was not able to put in a submission.

On reconvening the Adjudicator stated that he had decided not to grant the request for an adjournment. The fact was the complainant was requested to make a written statement many months previously. There were 6 complaints before the Adjudicator concerning the same respondent and from the complainant. The complainant had been requested on the following dates to provide a written statement:

3rd of February (Adj-00031166)
25th of May 2021(Adj-00033036)
26th of July 2021(Adj-00033816)
27th of July 2021(Adj-00033815)
16th of August 2021(Adj-00033817)

The same email address has been used for all correspondence and that included the notification of the hearing today and the respondent’s submissions sent to him on the 2nd of June 2022 that he acknowledged he received.

The request for an adjournment based on the respondent making a late written submission when he had made none and carried the burden of proof to establish a prima facie case was an important consideration in refusing his application for an adjournment.

I have also had regard to the lateness in making this application; although, he was on notice of the hearing for all cases based on the following communication from the WRC:

Private and Confidential

21 April 2022

DearMr Alamazani

I refer to previous correspondence in relation to the above complaint / dispute presented to the Workplace Relations Commission (WRC) for adjudication. An Adjudication Officer will now hear this case.

Please read and note the following information carefully

Information in relation to the conduct of Hearings and the redress which can be granted by Adjudication Officers is available at www.workplacerelations.ie.

Notification of Hearing

The following are the arrangements for the Hearing of the above case:

Date:

07 June 2022

Venue:

Room 4.02 Lansdowne House

Ballsbridge, Dublin 4, D04 A3A8

Time:

13:30

Guidance Note for a WRC Hearing

Guidance Note for a WRC Adjudication Hearing - Workplace Relations Commission

WRC procedures in the Adjudication and Investigation of all Employment and Equality complaints and disputes

Written Statements/Submissions

Please note all statements/documentation/submissions/evidence relevant to the specific complaint being heard should be forwarded to the WRC and exchanged with the other party(ies) well in advance of the Hearing date (at the latest 15 days in advance of the Hearing).
The admissibility of material which does not allow for sufficient review prior to the Hearing will be a matter for determination by the Adjudication Officer.
Statements summarising the facts and legal issues should be paginated, with paragraphs numbered for ease of reference at the Hearing. All supporting evidence should also be paginated, and tabbed and listed on an index. This makes it easier if one party is referring to a specific section of a document during a Hearing.
Note: Submissions are required from the Complainant in Employment Equality and constructive dismissal cases, from the Respondent in all other Unfair Dismissal complaint, or when requested by an Adjudication Officer.
All documents must be emailed to pru@workplacerelations.ie with the case reference clearly marked and be copied to the other party(ies).

Postponements

It should be noted that a postponement of the Hearing will only be granted in exceptional circumstances and for substantial reasons.

Requests for postponements should be made using the Application Form by email at the earliest possible opportunity to postponements@workplacerelations.iesetting out the full reasons for the request. Requests must be accompanied by the relevant supporting documentation. Please use this email address for postponement requests only.

A copy of the Guidelines for Postponements and Application Form is attached for your information. These are also available on the WRC website WRC Postponement Guidelines

All other adjudication related correspondence should be sent to pru@workplacerelations.ie

Yours sincerely

Adjudication Services

Email: pru@workplacerelations.ie

Postponements email: postponements@workplacerelations.ie

On the day of hearing to state he had failed to make his written submission because he was busy doing exams and he was sick at a point during the period leading up to the hearing; did not justify a postponement. No evidence was presented at the hearing concerning these assertions. The complainant had received notice as late as the 21st of April 2022 to submit any written statement within 15 days of the hearing. In all the circumstances to agree to an adjournment based on the lateness of the application; the fact that the complainant was on notice to provide a statement and in fact prior to the hearing on the 21st of April 2022 had again been informed to provide a written statement and had failed to do would be unfair.

The Adjudicator stated that because the complainant was a lay litigant, he would be assisted by the Adjudicator to communicate his case but not to make his case. The hearing would be recalibrated as required to ensure that it was fair and that he was not taken by surprise. If necessary, the hearing would be reconvened. However, the hearing would start today with the complainant presenting his claims and giving his evidence. The respondent employer had denied his account and it was explained that after he gave his evidence the employer would be asked to call any witnesses.

The complainant was asked to present his first complaint and detail what occurred. He refused to present his complaint and again the Adjudicator requested that he do so. The complainant refused and insisted that the hearing should be adjourned. Again, when asked to present his case, he again refused and said he would leave the hearing, that the decision not to adjourn was racist.

The hearing was adjourned for 15 minutes to provide time for the complainant to reconsider his position.

When the hearing reconvened the respondent employer asked that this complaint be dismissed as the complainant had failed to return to present their case and had been provided an opportunity to do so and that the respondent employer was ready and prepared to do so.

Summary of Complainant’s Case:

See preliminary matter

Summary of Respondent’s Case:

See preliminary matter

Findings and Conclusions:

The procedures being relied upon by the complainant clearly state:

It is entirely a matter for the Adjudication Officer whether to allow any evidence to be submitted within 15 working days of the date of the hearing.

The complainant was provided with an opportunity to make an application for an adjournment. That application was refused having regard to the reasons provided by the complainant. The onus was on the complainant to provide a written statement. He failed to do so. He had been requested on many occasions to do so. He had been reminded as late as April 2022 to do so. To agree to an adjournment because the respondent did in fact make a written submission; although, late, as no submission had been forthcoming from the complainant, would be unreasonable.

The complainant insisted that an adjournment must be given. Ultimately both parties must be heard, and a decision made having regard to reasons provided.

While complaining that the respondent had made their application late; he stated that he never had received any request for a written statement. That assertion is not credible based on the chain of correspondence and the fact that the complainant attended at the hearing, the same correspondence that again had requested a written statement.

In addition, the complainant stated that he was delayed in making a submission arising from the fact that he was studying for exams and at a time was sick. No evidence was provided to support these assertions. Such an application could have been made having regard to the notification that he had received of this hearing on or about 21st of April 2022.

The complainant was asked to present his case and detail what occurred. He refused to present his case and again the Adjudicator requested that he do so. The complainant refused and insisted that the hearing should be adjourned. Again, when asked to present his case, he again refused and said he would leave the hearing, that the decision not to adjourn was racist.

The hearing was adjourned for 15 minutes to provide time for the complainant to reconsider his position.

When the hearing reconvened the respondent employer asked that this case be dismissed as the complainant had failed to return to present their case and had been provided an opportunity to do so and that the respondent employer was ready and prepared to do so.

Decision:

CA-00044679-001

The complainant was provided with an opportunity to present his case and decided not to and left the hearing. As the respondent was ready to present their case and no facts have been presented to establish a prima facie case; I must determine that the complainant has not made out a prima facie case to raise a presumption of discrimination. In those circumstances I must find that the complainant was not discriminated against by the respondent, and I dismiss the complaint.

Dated: 04th July 2022

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Prima Facie