Complainant

Respondent

Parties

Cathy  O'Leary

John Bogue

Representatives

Ryan McManus, B.L.

Emer Holohan, Barry Healy & Company Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039281-001

20/08/2020

The incident giving rise to this complaint followed from the purchase of an item by the complainant in a shop operated by the respondent.  The item, an apple tart, was found by the complainant to be inedible as it was sprinkled with salt instead of sugar.  The complainant returned with the item to the shop and her complaint of discrimination in the provision of services arises from the resultant interactions with the respondent.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020, and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The respondent initially refused to speak to the complaint.

The respondent shouted at the complainant and adopted an aggressive and abusive tone towards her.

The respondent referred to the complainant as a Traveller and stated that he was “sick of Travellers this day.”

The respondent refused to apologise to the complainant for his behaviour or to compensate her for publicly humiliating her on the shop premises.

The complaint is outside of the statutory time limit for lodging a complaint.

The complainant has not provided any reasonable cause for the extension of the time limit.

The complainant is not a member of the Traveller community.

The respondent denies ever referring to the complainant as a Traveller.

The actual complaint about the purchased item has been dealt with by way of an apology and refund.

All evidence was heard under affirmation.

The respondent operates a business comprising of a garage and shop employing around 50 staff.  The complainant said in evidence that she had purchased an apple tart in the shop part of the premises on 20 February 2020.  When she got home she cut a slice from the tart and discovered it to have an extremely salty flavour.  The complainant went back to the shop with the tart.  According to her evidence the complainant attempted to speak with the respondent in person as she knew him to be the owner of the business.  The complainant stated that the respondent walked away from her.  The complainant then spoke to the respondent’s wife who was the shop manager.  The manager agreed that the tart had been sprinkled with salt instead of sugar.  The manager apologised and told the complainant that she could have another apple tart and a refund.  Some other apple tarts that were similarly contaminated were also removed from sale.  The complainant was, however, dissatisfied with the attitude of the respondent and again sought him out.  According to the complainant his attitude was aggressive, and he told her that he was “sick and tired of dealing with travellers.”  The complainant stated that she told the respondent that she was not a member of the travelling community.  He concluded the conversation by walking away from the complainant. 

The next day (21 February) the complainant returned to the shop as she wanted the respondent to apologise for his behaviour.  The respondent called her into his office and, according to the complainant, she informed him again that she was not a traveller.  There was a discussion about where she lived.  The complainant was unhappy as the respondent refused to offer her an apology and she found his attitude to be dismissive. 

The complainant wrote to the respondent on 17 April 2020 to complain about his attitude, requesting an apology for his behaviour and compensation for what she termed as “the public humiliation by you in your shop premises”.  The respondent replied with two letters.  The first letter dated 22 April 2020 set out the respondent’s view of the events and the subsequent interaction between himself and the complainant.  The letter denied that the respondent had referred to the complainant as a traveller and accused her of harassing him.  The second letter dated 23 April 2020 acknowledged receipt of her letter, stated that the matter had been dealt with and had been concluded on 20 February and apologised for the inconvenience caused.  

The complainant subsequently referred a complaint to the WRC under the Equal Status Act, 2000, where it was received on 20 August 2020.

Section 21 of the Equal Status Act, 2000, states:

(1)    A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission.

(1A) N / A

(2)    Before seeking redress under this section, the complainant –

(a)    shall, within 2 months after the prohibited conduct is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of –

(i)                  the nature of the allegation,

(ii)                the complainant’s intention, if not satisfied with the respondent’s response to the allegation, to seek redress under this Act,

and

(b)    may in that notification, with a view to assisting the complainant in deciding 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.

There is a prescribed form available (Form ES1) to assist complainants in regard to this matter.  It is not mandatory to use this form, however, providing that the complainant complies with the requirements of Section 21 of the Act.  According to the evidence before me the actions of the respondent which were the subject of the complaint occurred on 20 / 21 February 2020.  The complainant wrote to the respondent on 17 April 2020 detailing her complaint about his attitude and his remarks.  The letter concluded as follows:

“I am calling upon you to apologise for your abusive and aggressive behaviour and to compensate me for the public humiliation by you in your shop premises.

I await hearing from you.”

It is clear therefore that, whilst the letter was sent to the complainant within the statutory time limit set out in Section 21, it did not comply with the requirement set out in subsection 2(a)(ii), i.e. notifying the respondent that, if the complainant was not satisfied with his response, she would seek redress under the Equal Status Act. 

Section 21(3) of the Act states:

(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 circumstances of the case to do so direct that subsection (2) shall not apply in relation to the complaint to the extent specified in the direction,

          and where such direction is given, this Part shall have effect accordingly.

(b)    In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall have regard to all the relevant circumstances, including –

(i)                  the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii)                the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.

I have considered whether I should apply the discretion contained in the above subsection so as to set aside the provisions of subsection 2(a)(ii).  I note, however, that this should only be applied “exceptionally”.  The Labour Court in the case of Gaelscoil Thulach na nOG v Fitzsimons-Markey, (EET034), said:

“The term exceptional is an ordinary familiar English adjective and not a term of art.  It describes circumstances such as to form an exception, which is out of the ordinary course or unusual or special or uncommon, to be exceptional a circumstance need not be unique or unprecedented or very rare; but it cannot be one which is regular or routinely or normally encountered.”

It is clear therefore that any decision to apply this discretion should only be taken for circumstances that are out of the ordinary.  I have heard no evidence that would support the position that exceptional circumstances exist in this matter such as to satisfy me that it would be fair and reasonable to initiate the process of directing that subsection (2) not apply in respect of this complaint.

Consequently, I find that I do not have jurisdiction to hear this complaint.

Complaint No. CA-00039281-001:

For the reasons set out above I find that the complainant has failed to comply with the provisions regarding the presentation of a complaint as set out in Section 21(2) of the Equal Status Acts, 2000 – 2015, and that consequently I do not have jurisdiction to hear the complaint.

Equal Status Acts 2000 – 2015     Discrimination     Provisions of Section 21     Jurisdiction