ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030181
Parties:
| Complainant | Respondent |
Parties | John Holland | Dept Of Culture, Heritage And Gaeltacht |
Representatives | Self on first date of hearing | Peter Leonard BL instructed by Karen MacNamara Chief State Solicitor's Office |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00040268-001 | 06/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00040289-001 | 06/10/2020 |
Date of Adjudication Hearing: 21 /04/22 and 22/06/2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 79 of the EmploymentEqualityfollowing 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 parties attended for the first day of the hearing scheduled for 21st April 2022. A detailed submission was received from the Respondent side on the morning of the hearing. The submission was one not solely of facts or legal arguments related to the substance of the case but raised a fundamental preliminary issue regarding the Complainant not having standing as an employee of the respondent to bring the case and therefore of the AO not having jurisdiction to hear the complaint against the respondent. It was submitted that any complaint should have been made against PAS. An explanation was sought from the representatives as to why there was such a late submission. The legal representatives advised that they were put on notice of the complaint and hearing only two days prior to the hearing. As the fault for this situation lay with the Department-they were asked for an explanation which was put down to changes in personnel and not realising they would require or should avail of legal representation for the hearing.
Having made my dissatisfaction at the action or inaction of the Respondent clear, the Complainant was then asked how he wished to proceed. At first, he indicated he had read the other sides submission that morning and it seemed to him there was not much in it. When the significance of the other sides preliminary issue was explained to him, he then sought an adjournment to consider the submission. He was asked to provide any correspondence which he had with PAS concerning the competition and appointment prior to the reconvened hearing. The parties were informed the hearing would be reconvened in June.
The link for the virtual hearing was issued to the parties on June 20th 2022. While the Respondent provided a list of attendees, there was no contact from the Complainant and neither did he provide the documents requested on the first day of the hearing. On the morning of the resumed hearing, when the Complainant had not attended by the scheduled time, he was contacted by a member of staff at the WRC. The Complainant said he had forgotten all about the hearing, that he would not be attending and asked what would happen next. The member of staff advised that he informed the Complainant that it would be a matter for the Adjudication Officer to decide.
There was a discussion with the Respondent Counsel as to whether he would be prepared to adjourn the hearing to another day to allow the Complainant to attend-in which case written confirmation would be required from the Complainant that he did intend to pursue the matter. Following consideration with his client, the Respondent Counsel indicated a preference that a decision would be made based on non-attendance by the Complainant. In the circumstances, I consider that there is no reasonable basis for reconvening the hearing at this level for a third time to facilitate the Complainant. The first day was adjourned at his request in the interests of fair procedures and he was on the same notice of the resumed hearing as the Respondent, receiving not only the notice but the link to the hearing.
Background:
The complaint is concerned with a complaint on grounds of disability in refusing to employ the Complainant in the named Department after he had notified them of a medical condition. While two CA numbers are cited in the Decision template, this resulted from the use of a manual and pdf form. There is one case with two CA numbers. |
Summary of Complainant’s Case:
The Complainant applied for a clerical officer competition through PAS. He was assigned to the Respondent Department in July 2020. When he informed HR that he was immunosuppressed the Department refused to complete the assignment and referred him back to PAS. In his complaint form he said he was out of work for some months as a result. |
Summary of Respondent’s Case:
The Respondent raised the preliminary issue that the Complainant was not and never was an employee of the Respondent for the purposes of Section 2 definitions applying to an employee and an employer as defined. Case law was cited as a precedent in support of the contention that the Complainant does not have locus standi. Furthermore, the Respondent contended that it is the Public Appointments Service which has exclusive responsibility based on their functions as set out in the Public Service Management (Recruitment and Appointments) Act 2004. |
Findings and Conclusions:
The summaries contain only the briefest of accounts of the detailed background provided by the parties. In the absence of the complainant it was not possible to hear evidence from him as to what occurred, or why he may have felt that the Respondent selected by him was the correct one or why he contends that what occurred was discrimination based on the disability ground. In the absence of his evidence and submissions, the complaint must fail essentially because it was not presented and therefore could not be investigated. While a decision of not well founded is issued in this case, nothing in this decision represents consideration of the fundamentals of the case, either way. |
Decision:
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00040268-001 and 00040289-001 As evidence was not presented by the Complainant at the hearing scheduled to investigate the complaint on June 22nd, 2022, the complaint by John Holland against the Respondent, Department of Culture Heritage and the Gaeltacht is not well founded. |
Dated: 23rd June 2022
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Discrimination/Disability Ground |