Complainant

Respondent

Anonymised Parties

A member of the Traveller community

A Local Authority

Representatives

Heather Rosen

 Michael Houlihan and Partners LLP

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00020329-001

07/06/2018

This complaint forms part of several linked complaints submitted against five individuals who are/were employed by a local authority. In total there are 14 members of the one family who are members of the Traveller community and who have claimed that they were discriminated against and harassed by the local authority in respect of their accommodation needs. The complainants are represented by Ms Heather Rosen.

The matter first came on for hearing on 18th October 2022 at the WRC offices in Ennis, Co Clare. The complainant’s representative attended the hearing without her client and sought an adjournment on that day due to health reasons as well as being unable to get instructions from her client for a number of reasons.

The respondent objected to the postponement and instead sought that the complaints be dismissed as the complainant had failed to attend the hearing and needed to be present to present her complaint.

The adjournment application was granted, and submissions were sought from the complainant’s representative concerning the timing of the complaint and acts of discrimination alleged to have taken place within the cognisable period of the complaint. Submissions were also sought on the issue of the correct respondent to the complaint on the basis that individual staff members of the County Council had been named and the respondent was of the view that the county council should be the named respondent to the complaints.

It was also clarified to the complainant’s representative that the complainant must be in attendance at the reconvened adjudication hearing that would take place in November 2022 and that the complainant would be required to address the burden of proof in relation to establishing a prima facie case of discrimination. It was also clarified to the complainant’s representative that if the complainant did not attend the reconvened adjudication hearing in November, a medical certificate would be required in relation to her absence.

At the reconvened hearing on 16th November 2022, the complainant’s representative renewed her postponement request on the basis of her own health as well as not being in a position to present any evidence, not having a note taker and not having equipment to show cctv footage in relation to the complaint. At this hearing the complainant was not in attendance.

The respondent objected to the postponement application and instead sought a preliminary decision on the issue of the named respondent and the timing of the complaints. The respondent argued that it was in excess of four years since the complaints were lodged and almost 7 years since the discriminatory acts were alleged to have taken place.

The hearing was not postponed, and the parties who were present made written and verbal submissions.

Due to the complainant’s nonattendance at the hearing in November 2022 and due to the hearing being reconvened to a date in December 2022, the complainant’s representative was given an additional opportunity to have her client present at the reconvened hearing on 21st December 2022 and was once again informed that if her client did not attend, a medical certificate would be required in relation to her nonattendance. The complainant did not attend the adjudication hearing on 21st December 2022 and no medical certificate was furnished in relation to her absence.

Anonymisation of the parties

This case is part of a wider referral where some of complainants are minors. In accordance with the longstanding practice of the WRC, I have exercised my discretion and have anonymised the parties in all of the related cases in order to protect the identity of the minor complainants. 

The complainant did not attend the adjudication hearings on the 18th October 2022, the 16th November 2022 or the 21st December 2022 to pursue her complaints.

The correct respondents.

In respect of the named individuals against whom the complaint is made, the respondent contends that the complainant’s representative has not specified any alleged acts of discrimination or harassment on the part of any individual and seems to be suggesting that the individuals in question should defend their position in circumstances where they are unaware of the specific allegations against them.

Notwithstanding the lack of any specifics in relation to the named individuals, the respondent’s representative contends that the individuals in question are not the correct respondent to the complaints. The respondent contends that the individuals, at the material time were acting in line with their contracts of employment in respect of the accommodation needs of the family and under the direction of the county council. The respondent contends that it is the county council that is the correct respondent to the complaints as it is vicariously liable for the actions of its employees in accordance with Section 42(1) of the Equal Status Act, 2000. The respondent’s representative cited a number of decisions of the WRC Adjudication Services on this point as well as previous decisions of the Equality Tribunal on the same issue and noted that at the date of the adjudication hearing none of these decisions in respect of the appropriate respondent have been overturned on appeal.

The nonattendance of the complainant.

The respondent argued that as the complainant did not attend the WRC adjudication on three occasions, and in the absence of any medical certification, the complaints should be dismissed.

The correct respondent

Section 42(1) of the Equal Status Act 2000, provides the following definition of vicarious liability:

42(1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employer’s knowledge or approval.

The within complaint was submitted against named individuals employed by the county council. The complainant’s representative contends that the individuals are the appropriate respondents whereas the representative for the respondent contends that in accordance with the provisions of the legislation, the county council is vicariously liable for the actions of the staff in question and on that basis the county council is the correct respondent.

On this point I note a numberof Workplace Relations Commission decisions where it has been held on a number of occasions that the appropriate respondent in similar complaints is the County Council. An example of these decisions is as follows: DEC-S2006-084 Michael Mongans & others v Clare County Council; DEC-S2008-039 John & Angela Mongans and Children v Clare County Council; and DEC-S2018-002 Michael and Anne O’Donoghue and their children v Clare County Council. 

I also note that at the date of the adjudication hearing of the within complaint, none of the decisions relating to the correct respondent have been overturned on appeal.

In my view, the individuals who were named as respondents to the complaints were acting in line with their contracts of employment under the direction of the county council and were not in engaged in the provision of services in their own right. The county council is the service provider in this instance and is vicariously liable for the actions of its staff in line with Section 42(1) of the Equal Status Act, 2000. On that basis this decision will reflect the name of the county council as the correct respondent to the complaint.

The nonattendance of the complainant

The complaints were received by the Director General of the Workplace Relations commission on 7th June 2018 whereby it is alleged that the respondent contravened the provisions of the Equal Status Act, 2000 in relation to the complainant. The complaint was assigned the complaint application number CA-00020329-001.

The said complaint was referred to me for investigation. Adjudication hearings for that purpose were arranged for 18th October, 16th November and 21st December 2022. There was no appearance by the complainant at the adjudication hearings.

In all of the circumstances of the matter, I must conclude that the within complaint (CA-00020329-001) is not well-founded and I decide accordingly.  

Nonattendance at hearing