ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00037889

Parties:

	Complainant	Respondent
Parties	Michael Liam Mongan	Kenneth Murtagh/Murtagh Bars Limited

	Complainant	Respondent
Anonymised Parties

Representatives

Irish Human Rights & Equality Commission

Colm Conway Cathal L Flynn & Co Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000	CA-00048235-001	20/01/2022

Date of Adjudication Hearing: 20/02/2023

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 25 of the Equal Status Act, 2000 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainants are cousins and members of the travelling community. They alleged that they were discriminated against by the respondent on the grounds of being members of the travelling community on the 22nd.July 2021 when they were asked to leave the respondent’s bar.The respondent denied the allegations and instructed his representative to fully defend all of the allegations made.

The parties were requested to furnish submissions to the WRC on the matter of jurisdiction. The claimant’s representative furnished submissions to the WRC on the 8th.March 2023.The respondent furnished a responding submission on the 21st.April 2023.

Preliminary Matter of Jurisdiction

The complainant’s representative lodged complaints pursuant to S.19 of the Intoxicating Liquor Act 2003 in January 2022 with Carrick on Shannon District Court. Complaints to the WRC were also lodged in respect of the same allegations in January 2022 – the representative indicated that the complaints to the WRC would only proceed “if the District Court does not accept jurisdiction, the reason we have lodged the complaints in both for a is because the discrimination happened outside the licensed area of the premises”. At the hearing the respondent’s representative advised that the matter proceeded in the District Court on the 19th.July 2022 and was struck out. The respondent’s representative clarified at the WRC hearing that he had to hand a lease for the area where the impugned treatment occurred. This was furnished to the complainant’s representative – their submissions in respect of same are detailed below:

1.The Complainant’s herein acknowledge that the Respondent has provided a lease over the area where the impugned treatment occurred, which on its face appears to bring the area in question within the definition of “an outdoor seating area “within the meaning of Section 2 of the Civil Law (Miscellaneous Provisions) Act 2021.

2.The Complainant’s note that this lease is dated the 1st.Dec. 2020, and therefore was in place on the 19th.July 2022 when the matter was struck out in the District Court. It is most regrettable that the respondent did not bring the existence of the lease to the attention of the District Court when it made an application to have the matter struck out. The existence of the lease, and therefore the fact that the area in question was part of a licensed premises, was a matter uniquely within the knowledge of the Respondent. In allowing the District Court to proceed to strike the matter out on the basis that it should be dealt with in the Workplace Relations Commission (WRC), the Respondent allowed the District Court to proceed on an erroneous understanding that the WRC had jurisdiction in respect of this matter. The Respondent’s failure to inform the District Court and the complainants of the lease has led to significant wasting of time and costs to the Complainants, the District Court and the WRC.

3.The Complainants respectfully request that the WRC issue its written decision as soon as possible so that they may proceed to seek relief without further delay.

The respondent’s responding submission is detailed below:

A full submission at the oral hearing of the case was provided in respect of this and a copy of a lease provided to the Complainants Solicitors.

By way of record, April Duff BL or indeed any Solicitor part of the Irish

Human Rights and Equality Commissioner were not present in the District

Court and therefore we fully refute their synopsis of what occurred when the

matter was before the District Court. It is noted in the Complainants

submission that there is a significant wasting of costs in respect of the

Complainants and we believe that the Complainants were represented by the

Free Legal Aid Board and the Irish Human Rights and Equality Commission

and it would appear to the Respondent that the only significant waste of costs

would lie squarely with the Respondents who have had to pay their full legal

fees in respect of this matter from the outset.

The Respondents respectively request that the WRC issue its written decision in due course.

Findings and Conclusions:

Having reviewed the submissions of the parties I find the alleged prohibited conduct was directed against the claimants on the licensed premises and consequently I must decline jurisdiction on the matter.

Decision:

Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.

Because the alleged prohibited conduct took place on the licensed premises The Equal Status Act does not apply and I accordingly decline jurisdiction on the matter.

Dated: 9th May 2023

Workplace Relations Commission Adjudication Officer: Emer O'Shea

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