Complainant

Respondent

Parties

Patrick  Flanagan

Wynn's Hotel

Representatives

  Self-Represented

Legal representative attended at first hearing and did not attend at second hearing. 

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054077-001

07/12/2022

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

CA-00054077-002

27/03/2023

These matters came before the Workplace Relations Commission (hereafter WRC) on 7/12/2022 and on 27/02/2023 respectively as complainants pursuant to section 21 of the Equal Status Act, 2000.  The Complainant was advised by the WRC that the aforesaid complaints cannot be processed by the WRC as certain cases of discrimination that occur after 29th September 2003, on, or at the point of entry to, licensed premises are now within the remit of the District Court.  Notwithstanding, the Complainant sought to pursue his complaints and he was advised that it is a matter for the Adjudication Officer to consider the various sections of the Act and decide accordingly.

The aforesaid complaints were referred to me for investigation.  A hearing for that purpose was scheduled to take place on 20/07/2023.  The Respondent’s legal representative attended on that date.  The Complainant did not attend the hearing on that date, and I was not satisfied the Complainant was on proper notice of the date, time, and venue.  Accordingly, I adjourned the hearing on 20/07/2023 and a second hearing was scheduled by the WRC and took place on 20/11/2023. 

The Complainant alleges discrimination on the grounds of gender, age, and disability.  The Complainant alleges failure to provide reasonable accommodation, victimisation, and direct discrimination.  The Complainant alleges refusal of service in the bar of the Respondent hotel when having already consumed a meal he sought to order alcohol. 

The Respondent submits the WRC does not have jurisdiction to hear this complaint. 

Both parties provided written submissions in advance of hearing. 

The Complainant submits my interpretation of the legislation is “wrong” and he seeks to have this corrected with reference to section 19(2) of the Intoxicating Liquor Act, 2003. 

Section 19 (2) of the Intoxicating Liquor Act 2003 provides:

“A person who claims that prohibited conduct has been directed against him or her on, or at the point of entry to, licensed premises may apply to the District Court for redress.” [emphasis added]

The Complainant submits he was in the bar of the hotel, and he does not accept that being in the bar has the same meaning as being on licensed premises based on what he submits is a “plain reading of the words” of the legislation.  [emphasis added]

The Complainant submits he was not “on, or at the point of entry to” the bar.  He submits he was actually in the bar and the Equal Status Act 2000 must therefore apply to him and I am obliged to hear his complaints under that Act in the WRC.      

The Complainant submits I do have jurisdiction and he intends getting justice and if he does not get it from me today at hearing “he will see me in the Supreme Court” and in “the European Court of Justice.” 

The Respondent in its written submission seeks that the WRC decline jurisdiction in the matter as the Complainant has incorrectly brought his claim under section 21 of the Equal Status Act. 

The Respondent submits that pursuant to section 19 of the Intoxicating Liquor Act and having regard to previous decisions of the WRC it is clear the WRC does not have jurisdiction to hear this complaint.    

CA-00054077-001/2

Determination on preliminary matter of jurisdiction:

In the normal course of events, I would proceed to hear the substantive matter and reserve my position on the preliminary argument.  My ruling on the preliminary argument would then be contained in the ensuing decision.  The guidance notes for a hearing issued by the WRC in July 2021 states that in the vast majority of cases the AO will take evidence in relation to the preliminary points raised and then proceed to hear the substantive claims.  The use of the word “majority” is noteworthy.   

At hearing the Complainant’s claim under the Equal Status Actwas unequivocally not properly before me.  This is not a situation that provides for the exercise of any discretion whatsoever on my part.  If it had been the case that the preliminary argument related to, for example, the complaints being statute-barred then I would have reserved my position and continued to hear the substantive case in the event I might find reasonable cause exists to extend the time. 

I am mindful of the case ofGuerin v. SR Technics Ireland Limited [UD969/2009] where the Employment Appeals Tribunal was asked to make a decision on a preliminary matter before moving to hearing the substantive case and given the significant preliminary point raised the Tribunal moved to hear the preliminary matter first and reach a decision on same. 

Furthermore, in the case of Bus Eireann v. SIPTU [PTD8/2004] the Labour Court indicated that a preliminary point should be determined separately from other issues arising in a case “where it could lead to considerable savings in both time and expense” and where the point was “a question of purelaw where no evidence was needed and where no further information was required.”  [emphasis added] 

In the case of Donal Gillespie v. Donegal Meat Processers [UD/20/135] the Labour Court dealt with the matter by expressing the view that in asking for the substantive issue and the jurisdictional issue to be heard together was “akin to asking the court to exercise its jurisdiction before it determines whether or not it has jurisdiction in the first instance.”

I am satisfied it would have been not alone futile but unfair to both parties to proceed with the hearing of the substantive matter and commence my investigation into complaints CA-00054077-001/2 all the while knowing in advance what the outcome would be and where it is clear and unambiguous that I do not have jurisdiction. 

To proceed to such a lengthy hearing in such circumstances would have been unjustified.  Furthermore, I am obliged at all times to consider that which constitutes the most efficient and effective use of the resources of the WRC. 

I considered this to be one of a minority of cases where the preliminary issue was required to be determined when it was clear I did not have jurisdiction to hear the complaints as set out in the relevant law hereunder. 

The Relevant Law:

Section 19(11)(a) of the Intoxicating Liquor Act, 2003 provides as follows:

“The Act of 2000 shall cease to apply in relation to prohibited contract occurring on, or at the point of entry to, licensed premises on or after the commencement of this section.”

“Act of 2000” means Equal Status Act, 2000.

This effectively transferred jurisdiction to the District Court in cases of alleged discrimination on or at the point of entry to a licenced premises. 

Section 19(1) provides:

“A person who claims that prohibited conduct has been directed against him or her on, or at the point of entry to licensed premises may apply to the District Court for redress.” 

Section 19(1)(b) defines prohibited conduct as:

“Discrimination against, or sexual harassment or harassment of, or permitting the sexual harassment or harassment of a person in contravention of Part 11 (Discrimination and Related Activities) of the Act of 2000 on, or at the point of entry to, a licensed premises.” 

The Complainant was seeking a service in a licenced premises, the Saints and Scholars bar, in the Respondent hotel.  The Intoxicating Liquor Act provides that redress in respect of discriminatory treatment on any of the grounds under the Act of 2000 may be sought in the District Court. 

In the circumstances the within claim is inadmissible under the Equal Status Acts.

Therefore, I do not have jurisdiction to consider the complaint of discriminatory treatment on the grounds of gender, age, and disability or to consider the Complainant’s allegation of failure on the part of the Respondent to provide reasonable accommodation or to consider the allegation of victimisation.   

As these alleged interactions occurred on a licensed premises, I find the Workplace Relations Commission does not have jurisdiction to decide on this complaint pursuant to section 19(2) of the Intoxicating Liquor Act, 2003. 

CA-00054077-001/2

For the reasons set out above, I decide I do not have jurisdiction in this matter. 

Equal Status Act; Intoxicating Liquor Act; Jurisdiction; preliminary objection;