Complainant

Respondent

Anonymised Parties

A Hotel Guest

A Hotel

Representatives

  Kenny Sullivan Solicitors

 Leahy Reidy 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-00038753-001

15/07/2020

The Complainant alleged he was discriminated at a breakfast in a Hotel by being “smirked at” by a Work Placement Student and being asked to leave before he was finished. He alleged this was because of his foreign nationality, when other guests, who it was alleged were Irish, were not asked to leave early and were treated better than him and his family.

The Complainant booked a two-night stay with his wife and 8 year old daughter in the  Respondent’s hotel for the purposes of a well needed family break. On the 19th of February 2020 the Complainant checked into the hotel and was assigned a room in which the heating was not working. He brought this to the attention of the hotel management who brought a moveable Dimplex heater which also was not working properly to the room and plugged it in. This was not really a satisfactory solution given the cold weather at the time but the Complainant accepted the solution as he had committed to the holiday and there was little choice at the time.

Immediately having left the restaurant on the 21 February 2020, the Complainant reported the incident and his discriminatory treatment to the Manager on duty who did not take it seriously. The complainant felt so strongly about how he was treated when he arrived home later that evening, he telephoned the hotel and spoke to the owner of the hotel and advised her exactly what had happened. The Complainant was sure the other guests were all Irish nationals. The Complainant challenged the waitress directly and put it to her that she was treating him and his family differently because he was not Irish and he asked her if she was going to ask the other guests to leave the restaurant. The waitress did not reply but smirked at the Complainant and his family and walked away from him leaving the Complainant feeling demeaned and shocked.

The Complainant later noticed what appeared to be Irish guests arriving for a late breakfast. The waitress welcomed these guests and ushered them to a table and did not indicate that the restaurant was closed or that they were under any time restraints. The waitress engaged with them and the other guest in a polite and friendly manner which was at total variance to the manner in which the Complainant and his family were treated.

On the 21 st of February, the morning that the Complainant was due to check out of the hotel he attended the dining room for breakfast and despite the presence of four other tables of guests in the dining room, the Complainant and his family were left in no doubt by the waitress that was serving them that they were not welcome and she treated them in a deplorable manner while adopting an entirely different attitude to the other guests in the dining room, all of whom appeared to be Irish nationals. The complainant and his family were treated less favourably and indeed victimised because they were not Irish nationals and were not treated in the same fashion as the other guests in the dining room or indeed guests that arrived at a later stage.

It was submitted that the Complainant was treated in a less favourable manner than the other guests and the Complainant had no doubt that the reason for this was because he and his wife and child were not Irish and were deserving of a different level of service than the other guests. When it was put to the waitress that she was treating them less favourably, she did not deny it rather she smirked and walked away leaving the Complainant feeling demeaned and embarrassed.

It is accepted that a hotel breakfast service can be a busy place and that often guests will arrive late and this can cause problems where there is a busy schedule for the day. This however was not the case on the day in question. There were four other tables at various stages of their breakfast. The complainant and his family were singled out. The Complainant works a Garda and is well used to applying common sense and using the extensive powers to exercise discretion that are given to him. The Complainant felt so strongly that he and his family were being singled out and treated differently because of their nationality that he put it to the waitress personally and directly, he then reported the matter to the Duty Manager of the Hotel and subsequently called spoke with the Hotel owner when he returned home. It was clear that the hotel did not take the Complainants complaint seriously. The Complainant submitted a medical note dated November 4th 2021 (which will be referenced in my Findings below).

It was accepted that the Complainant was a resident at the Respondents Hotel from the 19th February 2020 to the 21st February 2020.    

On the day of the alleged incident the hotel was preparing for two major events and the staff was under pressure to clean up after breakfast in order to set the restaurant up for these functions.

The alleged incident involved the Complainant and a 16 year old work experience student.  The student had been given instructions to clear tables as soon as possible once breakfast had finished.

 It was alleged by the Complainant that he has suffered discrimination by the Respondent and that the alleged effective date for such discrimination is that of the 21st February 2020 as specified by the Complainant in his Submission to the Workplace Relations Commission. 

 The Respondent argued that the Complainant had not in any way established a prima facie case of discrimination and therefore, the Complainant did not meet the requisite burden of proof only because of him being “foreign”.   

Section 3(1)(a) of the Act defines discrimination as where a person is treated less favourably than another person is, has been or would be treated, and the relevant discriminatory grounds are detailed at 3(2)(h) that they are of different race, colour, nationality or ethnic or national origins.  

It was submitted that the Complainant has made no attempt whatsoever to establish that a prima facie case had been made.   A prima facie case must be established by the Complainant to establish the presumption of discrimination.  The Complainant has provided no evidence, save for what he says he saw, of interaction between members of staff and the other tables in the restaurant.  He has provided no factual evidence other that an account of a discussion with a young work experience student who he claims “smirked” at him.  The Respondent stated that a “smirk”, and that is the Complainants word, in no way constitutes discrimination and that in fact he himself saw that the staff member was very young and therefore he should have brought this matter to the immediate attention of a more senior member of staff and not to reference this on check out. 

The Respondent stated that the Complainant was also provided with a full refund after his stay as a way of resolving the many disputed complaints that he had with the hotel during the course of his stay and he accepted this at the time.  The Respondent considered the matter closed at that point. 

Under Section 21 of the Equal Status Act 2000 before a person makes a complaint to the Workplace Relations Commission in regard to perceived discrimination or unlawful treatment, they must first send a notification in writing to the Respondent. This notification must contain specific information concerning the alleged discrimination and must be received by the respondent within 2 months after the occurrence of the event in question. 

The Respondent did not receive anything in writing from the Complainant until the 11th June 2020.  The allegations were rejected in a reply by the General Manager by letter dated 2nd July 2020.  Therefore, the Complainant has failed to meet the requirements of Section 21 of the Equal Status Act 2000 concerning notifying the Complainant in writing of his complaint within two months from the alleged discrimination and the Adjudicator must decline jurisdiction to issue a Decision on the Complaint.

The Respondent objected to jurisdiction to issue a Decision on the substantive issue as the matters complained were out of time.

Preliminary Matter

I have decided that in this case it is fair and necessary for me to determine if the matter before me is statute barred.

The Law

Section 21 of Equal Status Act 2000 as amended requires that:

(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.

(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.

  ( 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.

It is clear the Complainant did not submit his complaint in writing to the Respondent within two months as required by Section 21 3 (i) above. The issue for the Adjudicator to decide as a preliminary matter then is whether there were ‘reasonable cause’ that would warrant an extension of the 2 month time allowed for submission of the notification of a complaint to a Respondent in writing as allowed for under Section 23 3 (ii).. The elements of test to be applied by the Adjudicator with regard to issues regarding delays were probably best set out by the Labour Court in which the Court, having quoted from Cementation Skanska v. Carroll DWT0338, stated;

‘It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the Complainant would have presented the complaint in time were it not for the intervention of factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified’.

In addition, in the Minister for Finance v Civil and Public Service Union [2006] IEHC 145, Laffoy J at paragraph 38 wrote: In the 2004 decision, the Labour Court observed that a relatively short time limit is provided in O. 84, r. 21, with discretion in this Court to extend the time where there is "good reason to do so". It is clear from reading the 2004 decision that the Labour Court accepted that the authorities on O. 84, r. 21 could be applied by analogy to s. 19(5). In particular, the Labour Court quoted, and, indeed, applied the seminal passage in the judgment of Costello J., as he then was, in O'Donnell v. Dun Laoghaire Corporation [1991] I.L.R.M. 301 (at p. 315) in which he construed the term "good reasons" as follows "The phrase 'good reasons' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and that the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, rule 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay the court might well conclude that his explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (State (Cussen) v. Brennan [1981] I.R. 181)."

The test is an objective one and importantly the case law requires that the Adjudicator should not extend the time merely because an aggrieved Complainant believed that he or she was justified in delaying the institution of proceedings.

The Complainant was a Hotel Guest between February 19th and  21st 2020. He alleged in his complaint to the WRC that he had been discriminated on by a Waitress in cleaning up his table and she had not asked others to finish up and he alleged this was because of his nationality. The Complainant sent his ES1 form to the Respondent on June 15th 2021, some nearly four months after the alleged incident.

The Complainant applied for an extension of time beyond the two-month time limit for submitting the ES1 form on the basis he was waiting for a reply from the Hotel. However, the Complainant had no evidence that he submitted any correspondence to the Hotel from the date of the alleged incident to the date he submitted the ES1 Form.

An initial Hearing for this compliant was heard on May 14th 2021. The Hearing was adjourned primarily because there was a dispute about a conversation between the parties that the Complainant had been asked to wait for a response from the Respondent following a phone call he made on returning home from his visit to the Hotel and the Adjudicator was requested to reconvene the Hearing once the legislation was in place to take evidence on oath post the Zalewski Supreme Court legislation for same. The Respondent objected to this and advised the Adjudicator that this would involve extra costs for the Respondent. In the interest of natural justice, the Hearing was postponed by the Adjudicator to allow for the taking of evidence on Oath.  A Face to Face Hearing was then scheduled for December 3rd 2021 and following a request by the Complainant that this would involve difficulty for him travelling, due to pain, this Hearing was postponed by the WRC in favour of a Remote Hearing which took place on February 15th 2022. However, nothing turns on this oral evidence as no written complaint had been made by the Complainant in the two months after the alleged incident.

On the day prior to that Hearing the Complainant engaged his Representative and confirmed he had not written to the Respondent within the two months time-frame set out in the Act to formally notify the Respondent of his complaint in writing. The Complainant then stated, in evidence, that the reason for this was on the basis he was suffering from pain due to an accident at work and this caused certain periods of lack of awareness. This reason was not presented at the first Hearing as a reason for the delay for not notifying the Respondent in writing within the two month timeframe.  The ground advanced at the first Hearing was that the Complainant was waiting for a reply from the Hotel Owner.  The supporting documentation supplied by the Complainant from the Medical Professional treating the Complainant was dated November 4th 2011 and stated  “(The Complainant) attends my clinic for management of left upper extremity neuropathic pain/complex regional pain syndrome. (The Complainant) requires frequent interventional therapies and a range of pharmacological agents to assist in managing his severe pain syndrome. Many factors are associated with severe exacerbation of his pain in particular traveling long distances. With this in mind I would fully support that (The Complainant) be facilitated to participate in his upcoming case by virtual format rather than requiring him to attend in person which will undoubtedly result in severe exacerbation of his neuropathic pain.” This medical statement appears to have been produced to support the change from a Face to Face Hearing to a Remote hearing and does not address the Complainants medical condition specifically for the two months between the alleged incident on February 21st and the expiration of the time limit on April 21st 2021.  Therefore, it has no or little relevance to the justification for an extension of time for reasonable cause., leaving aside it was never mentioned as a justification for the delay at the first hearing.

At the final Hearing the Complainant advised he was a Garda and on sick leave for three and a half years due to an assault which necessitates pain medication. The original reason identified by the Complainant for the delay in submitting the complaint was that he was waiting for a reply from the Respondent. At the reconvened Hearing the justification for the delay changed to medical grounds but no specific medical statement or other acceptable ground was submitted to justify that the Complainant, a serving Garda (and therefore it would be assumed had a greater knowledge of legal procedures than a lay person) was incapable of submitting a complaint within the required legal timeframe.

Notwithstanding the fact that this claim involves a very young and inexperienced person aged 16 on a week of work placement (and not a regular employee of the Respondent) where a large degree of “latitude” would normally be expected to be given by a person, irrespective of nationality, to their behaviour due to their age and inexperience, the Complainant offered no evidence of what communications the Complainant was waiting for a response to. Even if such a written communication had taken place, which it did not, it would have to be very strong supportive evidence of a complaint to allow an extension of time for reasonable cause.  In addition, while not relevant to the Preliminary Decision, the Complainant had no evidence of the other nationalities at the breakfast on the morning in question, other than his personal observations, to support a prima facie case and transfer the burden of proof to the Respondent.

I find that I have no jurisdiction to issue a Decision on the substance of this complaint as it was submitted in writing by the Complainant to the Respondent out of time and there is no reasonable cause to extend the time allowed beyond two months. Accordingly, I find the Respondent did not engage in prohibited conduct.

I have also decided to exercise my discretion to anonymise the Parties having regard to the involvement of a 16 year old child (at the time of the incident) as the alleged perpetrator of the discrimination in the Hearing.

Discrimination