Complainant

Respondent

Parties

David  Devoy

O.T Investments Unlimited Company T/A  O'Tooles Supervalu

Representatives

 Self

Clare Bruton BL instructed by Jordan & Kennelly Sols

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049374-001

25/03/2022

This case is concerned with an allegation of discrimination by the Respondent against the Complainant on grounds disability. The matter relates to an alleged refusal to provide goods or services to the Complainant when he refused to wear a face mask required under statutory provisions issued by Government in association Covid 19 public health advice in February 2022.

A complaint was received by the WRC on 25th March 2022.

The Respondent representative provided the correct legal trading name for the Respondent which is that cited in this Decision.

At the hearing in November 2022 the preliminary issue of notification to the Respondent in accordance with section 21(2) arose for consideration. This was raised in the Respondent’s written submission. It was explained to the Complainant, that the Equal Status Act requires that an ES1 Form or an equivalent document shall be served on the Respondent. The form of notification used must also inform the Respondent of the intention to issue proceedings under the Equal Status Act – at the same time allowing the Respondent to reply within a specified period and in some cases this process allows for a resolution before a complaint is submitted to the WRC. The receipt of an ES1 or its equivalent is disputed by the Respondent. No copy of such a notice was provided by the Complainant prior to the hearing. Given the importance of the matter at issue for the Complainant he was advised that this posed a difficulty in relation to proceeding with the substance of the complaint and was provided also with an opportunity to supply further evidence of notification of the complaint and intention to proceed under the Equal Status Act. The parties were informed and agreed that any submission received by the Complainant would be copied to the Respondent who would have an opportunity to reply. At that point it was also indicated that the undersigned would either convene a full hearing of the complaint or proceed to issue a Decision on the preliminary matter of the notification under Section 21.

I have decided to issue a Decision on the Preliminary matter, the contents of which mean that I will not be convening a hearing on the substance of the complaint.

Preliminary issue – Section 21 Notice to the Respondent

What follows is a brief summary of the sequence of events as described by the Complainant in his written  statement accompanying his complaint to the WRC.

07.02.22      In his written statement to the WRC, the Complainant described various discussions on this day with members of staff where he was refused service in the shop because he was not wearing a mask. He claimed an exemption on medical grounds. Later that day he called SuperValu Head Office (the Respondent store operates under the brand name of SuperValu). The person he spoke to at that point undertook to email the Tuam store to explain why he could not wear the face mask anymore and he was told to call back in a few days if he had not heard from the Respondent store.

16.02.22      The Complainant says that he phoned SuperValu again and they said they would escalate the complaint and again he was told to give them four days to respond.

28.02.22      The Complainant phoned customer service and spoke to a named person who told him he would escalate his complaint to the Area Manager.

01.03.22      At 10.33am one of the managers at the store phoned him and told him that he was not barred from the shop if he wore a face mask. He says that he again explained his medical situation and she replied that he could not enter the store. He referenced the Health Act. In that conversation he says that he asked the named manager if she had received “my registered letter (WRC complaint form)” and she told him that she had not received it. In his statement he said please find enclosed a receipt of the registered letter from An Post and proof of delivery on 24 February 2022. It is this communication delivered by An Post on 24th February 2022 which lies at the heart of this preliminary issue.

The Complainant provided a copy of a tracker receipt issued on 23rd February 2022. Also supplied was an email to the Complainant from Customer Service at An Post-dated 2nd March 2022:

“As previously discussed on our call, I can confirm this letter was successfully delivered to the address on the 24th of February on route 4 at 07.41am signed by P. Lambert as shown below. If the recipient is disputing this delivery, I would advise opening an inquiry so An Post can do a formal inquiry on behalf of the sender.”

On 17th November 2022 in a follow up to the hearing the Complainant wrote:

“Hi, I received an email from An Post which will confirm that the registered post was received by Mr P. Lardner who receives all post for SuperValu. Mr Lardner is the brother of the owner of O’Toole’s SuperValu Tuam. This will prove that I had sent the paperwork.”

Preliminary Issue-Section 21 Notice to the Respondent

In their written submission the Respondent addressed the matter of jurisdiction as follows:

“The Complainant failed to provide a written notification of his intention to bring a claim. Under the Equal Status Acts a person who is thinking of bringing a claim must first send a written notification to the person they wish to complain against, and that notification must be sent within two months of the incident being complained of.

The Respondent submits that the Complainant it out of time bringing his complaint in that the notification of his intention to bring a complaint was not provided to the Respondent within the two month time period.

It is respectfully submitted that the Workplace Relations Commission does not have jurisdiction to hear this dispute as the Complainant did not issue the notification within the statutory time limit. S.21(2) of the Equal Status Act 2000 sections (a) and (b) were included for reference.

There was no notice from the Complainant as required under the Act, and within the required time limit. Rather a complaint was made to the WRC in March 2022. While the complaint form refers to the Complainant providing notification to the Respondent on 24 February 2022, this is not accepted.”

At the hearing, Counsel for the Respondent advised that her instructions were that the person named by the Complainant and An Post as having received delivery of a tracked letter is not employed by the Respondent. Borsca v Bank of Ireland; Andrew Ennis v Navan O’Mahony’s Football and Hurling Club were cited as precedents as precedents requiring a strict interpretation of section 21(2). Any contact with the Respondent was oral and not in writing.

On 24th November 2022 the Respondent replied to the email submitted by the Complainant post hearing and related correspondence from the WRC:

“The Complainant has abjectly failed to provide a written notification of his intention to bring a claim under the Equal Status Acts in advance of lodging the claim with the Workplace Relations Commission. There is no evidence before the adjudication officer of compliance with section 21 by the Complainant. The documentation provided to the Workplace Relations Commission shows that a registered letter was sent to an unidentified Respondent. Therefore, in those circumstances and in particular as the correspondence allegedly sent has not been provided, please request that the adjudication officer dismiss the proceedings on this preliminary issue without proceeding to a hearing.”

EQUAL STATUS ACT 2000, REVISED, Updated to 29 July 2021

“Redress in respect of prohibited conduct.

21.— (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) If the grounds for such a claim as is referred to in subsection (1) arise —

(a) on the gender ground, or

(b) in any other circumstances (including circumstances amounting to victimisation) to which the Gender Goods and Services Directive is relevant,

then, subject to subsections (2) to (7) and (8) to (11), the person making the claim may seek redress by referring the case to the Circuit Court instead of referring the case to the Director of the Workplace Relations Commission under subsection (1) (and, if the case is referred to the Circuit Court, no further appeal lies, other than an appeal to the High Court on a point of law).

(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,

and

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

(2A) For the purposes of subsection (2) the date of notification is the date on which the notification is sent, unless it is shown that the notification was not received by the respondent.

(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.

(4) The Director of the Workplace Relations Commission or, as the case may be, the Circuit Court shall not investigate a case unless the Director of the Workplace Relations Commission or the Circuit Court, as the case may be, is satisfied either that the respondent has replied to the notification or that at least one month has elapsed after it was sent to the respondent.

(5) The Minister may by regulations prescribe the form to be used by a complainant and respondent for the purposes of subsection (2).

(6)   (a) Subject to subsections (3)(a)(ii) and (7), a claim for redress in respect of prohibited conduct may not be referred under this section after the end of the period of 6 months from the date of the occurrence of the prohibited conduct to which the case relates or, as the case may be, the date of its most recent occurrence.

(b) On application by a complainant the Director of the Workplace Relations Commission or, as the case may be, the Circuit Court may, for reasonable cause, direct that in relation to the complainant paragraph (a) shall have effect as if for the reference to a period of 6 months there were substituted a reference to such period not exceeding 12 months as is specified in the direction; and, where such a direction is given, this Part shall have effect accordingly.

(7) Where a delay by a complainant in referring a case under this Act is due to any misrepresentation by the respondent, subsection (6)(a) shall apply as if the references to the date of occurrence of prohibited conduct were references to the date on which the misrepresentation came to the complainant’s notice.

(7A) (a) Not later than 42 days from the date of a decision of the Director of the Workplace Relations Commission on an application by a complainant for an extension of time under subsection (3) or (6), the complainant or respondent may appeal against the decision to the Circuit Court on notice to the Director of the Workplace Relations Commission specifying the grounds of the appeal.

(b) On the appeal the Court may affirm, quash or vary the decision.

(c) No further appeal lies, other than an appeal to the High Court on a point of law.

(d) Unless otherwise agreed by the complainant and respondent, effect shall not be given to a decision of the Director of the Workplace Relations Commission on such an application until —

(i) the period of 42 days mentioned in paragraph (a) has expired, or

(ii) any appeal against it has been determined,

whichever first occurs.

(8) Information is material information for the purposes of this section if it is—

(a) information as to the respondent’s reasons for doing or omitting to do any relevant act and as to any practices or procedures material to any such act,

(b) information, other than confidential information, about the treatment of other persons who stand in relation to the respondent in the same or a similar position as the complainant, or

(c) other information which is not confidential information and which, in the circumstances of the case in question, it is reasonable for the complainant to require.

(9) In subsection (8) “confidential information” means any information which relates to a particular individual, which can be identified as so relating and to the disclosure of which that individual does not agree.

(10) This section is without prejudice to the other provisions of this Act relating to the obtaining of information.

(11) For the purposes of this section prohibited conduct occurs —

(a) if the act constituting it extends over a period, at the end of the period,

(b) if it arises by virtue of a provision which operates over a period, throughout the period.”

In their written submission, the Respondent refers to the matter of time limits implying that the complaint is out of time. The matter of time limits is not relevant in circumstances in this case, where the fundamental issue is whether a notice was issued by the Complainant such as to comply with his obligation to serve such a notice as stipulated in section 21. The word ‘shall” in subsection 2, is crystal clear in making the requirement to serve a notice a mandatory and unqualified requirement for any Complainant. There is a facility to extend the minimum time limits expressed in section 21(2) and further provided for in section 21(3) but the obligation to issue the notice remains as a basic requirement which cannot be waived by an adjudication officer. Or if it can be waived in its entirety due to the manner of expression of the terms of Section 21(3), I take the view to do so in this case would be to undermine in their entirety the provisions of the legislation and the obligations of a complainant to notify a Respondent formally of their dissatisfaction and the associated opportunity for a respondent to address the contents of an ES1 Form or its equivalent.

I accept that the Complainant sent a communication to the Respondent on 23rd February 2022 and that communication was in turn received by the Respondent on 24th February 2022 (albeit the name of the recipient of said correspondence changed between the original statement by An Post and the statement which they issued post the hearing on this preliminary matter). The difficulty for the Complainant is that he has not been able to provide any evidence that the letter which he registered on the 23rd of February 2022 contained either an ES1 or its equivalent. It is also noted that in his statement of complaint the Complainant refers to a conversation with a named manager on 1st March 2022 when he asked had she received a copy of his complaint “to the WRC” to which she replied no. Therefore, his original confirmation from An Post appears to have been a follow up to that verbal response on the 1st of March. He did not however reissue the notice or provide a copy to the Respondent of the documentation which the manager said had not been received as of 1st March 2022.

In the WRC complaint form, the Complainant was told ‘that he must attach a copy of theES1 form and proof of postage along with this completed form.’ So it can be seen that the Complainant knew manager at the store she did not have a copy of the ‘WRC Complaint’ as he described it and he also knew when completing the WRC complaint form that he was obliged to provide a copy of his notice to the Respondent and that he was unable to do so. Instead of taking any steps to rectify the known deficiency in his documentation for the purposes of a hearing of his complaint by the WRC, he relied on a tracker notice of a delivery of something to the Respondent by An Post on 24 February 2022 and the confirmation from An Post of delivery of postage on his behalf to the Respondent on 24 February 2022. It is worth noting that when completing the WRC form which he dated 25 March 2022, the Complainant was still within a two-month period when he could have issued an ES1 Form or its equivalent or even a second one when he realised that he could not provide such a document to the WRC. In arriving at this conclusion, it should be noted that it is not being suggested that an ES1 form should have been used by the Complainant, but with his access to email and ability to provide a written statement to the WRC and complete the related on line complaint form, it is not too much to expect that the Complainant provide physical evidence of the serving of the notice served on the Respondent, by way of a copy of that document or even an email of confirmation to the Respondent. A tracker notice from An Post does not meet the standard implied by section 21(2).

In conclusion on the preliminary issue, weighing up the provisions of the legislation with the known facts, I am satisfied that the Complainant sent registered post to the Respondent on 23rd February 2022 and that it arrived on 24th February 2022. However, as I have no evidence that the posted document Respondent was an ES1 Form, or its equivalent as required by section 21(2) of the Equal Status Act, I therefore I agree with the Respondent that the WRC does not have jurisdiction to investigate the substance of this complaint and find accordingly.

CA-00049374-001 On the Preliminary Matter of jurisdiction, I find that Mr David Devoy, the Complainant, has notprovided evidence that he complied with the terms of Section 21(2) of the Equal Status Act before seeking redress against O.T Investments Unlimited Company. Based on this finding, I do not have jurisdiction to investigate the complaint.

Disability-Application of Section 21.