Complainant

Respondent

Anonymised Parties

A Customer

A Financial Company

Representatives

  Self-represented

Barry Walsh Fieldfisher

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00049751-001

19/04/2022

The complainant is a customer of the respondent.  He submitted a letter of complaint to the respondent dated 26 January 2022.  (ES1 letter).  The dates of the alleged incidents of discrimination were October 2019 and 17 January 2022.  The respondent replied by letter dated 17 February 2022.  (ES2 letter).  The complainant submitted a complaint to the Workplace Relations Commission on 19 April 2022. 

The complaint as set out on the complaint form alleges discrimination in the provision of goods and services on the ground of sexual orientation.  The complainant at the hearing stated that was incorrect and a human error in ticking the wrong box on the complaint form.  The narrative box on the complaint form included information about alleged discrimination concerning requests for personal information that arose when international financial transfers included the complainant’s full name.

The respondent asserts that the first transaction is statute barred and that the complainant has failed to comply with section 21 (2) (a) of the Equal Status Act.

The respondent asserts that the complainant is not a party to the second transaction and therefore does not have ‘locus standi’ to bring that complaint. 

The respondent submits that the complainant selected the sexual orientation ground of alleged discrimination in the WRC complaint form and that this ground cannot be altered or amended during the proceedings.

The respondent denies that it discriminated against the complainant as alleged or at all.

The respondent raised the following preliminary points for decision.

Time Limit

Part of the complainant’s complaint relates to an alleged incident which took place in October 2019.  The complainant submitted his complaint to the Workplace Relations Commission on 19 April 2022, approximately two years out of time and well outside the six-month statutory time limit in accordance with section 21 (6) (a) of the Act.  The complainant is required to bring a claim for redress in respect of prohibited conduct within six months from the date of the occurrence of the prohibited conduct. 

The respondent submits that the complaint relating to the first transaction in October 2019 is statute barred.

The respondent noted that the complainant did not bring an application for an extension of time.  Even if the complainant was granted an extension of time for “reasonable cause” the maximum extension would be six months and the claim would still be out of time.  The respondent cited the decision in Masoud Seifikar V Bank of Ireland ADJ-00018535 where an extension of time was refused.

The respondent submitted that the complainant had not complied with section 21 (2) (a) of the Act which requires a complainant to notify the respondent of the alleged discrimination within two months of the incident complained about.  The complainant failed to send an ES1 notice or letter to the respondent concerning the alleged discriminatory incident in October 2019.  The respondent cited the decisions in A Hotel Client v A Hotel Group ADJ-00026218 and Skorupa v Permanent TSB ADJ-00030975 to support the submission that there is no jurisdiction to hear a complaint when the ES1 and the complaint form were submitted well outside the permitted time limits.

The respondent submitted that the complainant’s failure to satisfy the mandatory statutory notification requirement under section 21 (2) (a) of the Act in relation to the October 2019 transaction means that such claim cannot proceed as the WRC does not have jurisdiction to hear this complaint.

Incorrect Complainant

The respondent submitted that in respect of the second transaction in January 20222 the complainant is not the correct complainant.  Therefore, the complainant has no grounds or locus standi to bring this complaint.  The respondent submitted that it was not requested to and did not, at any stage, engage in the provision of a service to the complainant pursuant to the Act in relation to the January 2022 transaction.  The January 2022 transaction was a transaction between bank accounts belonging to a different person.

Selected ground of alleged discrimination

The respondent stated that the complainant selected the ground of sexual orientation on the complaint form.  The respondent contends that the matters complained of do not relate in any way to the ground of sexual orientation and the complainant does not have a stateable case in that regard.  The respondent submitted that this ground cannot be altered or amended at this point in the proceedings.

The complainant’s response to the preliminary issues.

Time Limit

The complainant stated that he did not report the first transaction of October 2019 because it was a one-off incident that was not enough to assume discrimination was exercised by the respondent.  The complainant complained about the first transaction at the same time as he complained about the second transaction.  In a letter dated 26 January 2022 the complainant submitted complaints about both transactions to the respondent.

Incorrect Complainant

The respondent stated the second transaction related to the processing by the respondent of an inbound cross border, electronic funds transfer that was made from an account held in the name of another person (not the complainant) with TransferWise from another country to that person’s own account with the respondent.  The complainant is not a party to this transaction.

The complainant states that he was directly impacted as the transaction was stopped because his middle name was included in the transaction.

Selected ground of alleged discrimination

The complainant stated that he never claimed that the case was connected to sexual orientation.  At the hearing the complainant acknowledged that he had marked the incorrect box on the complaint form.  The complainant stated that the case has to do with discrimination against ethnic sounding/Muslin names.

Hearing in Private

The respondent made a preliminary application to have the hearing in private and the parties anonymised in the written decision.  The respondent is a financial company and asserted that special circumstances existed that required a hearing in private. 

As a financial company the respondent has a duty to protect information about customers and their accounts.  The respondent stated that the second complaint, as set out in the complaint form, concerns a customer’s account and that customer is not the complainant and is not a party to this complaint.  In a public hearing information could be disclosed about a customer and/or that customer’s accounts where that customer is not a party to this complaint.  The respondent submitted that such special circumstances required a hearing in private.

Having considered the respondent’s submission I decided that special circumstances do exist justifying a hearing in private.  The second financial transaction concerns a customer account that is not the complainant’s account.  That account is held by a person who is not a party to this complaint and therefore I decide it would not be appropriate to hold a public hearing where information about a customer’s account might be disclosed.  I proceeded to hearing the other preliminary submissions in private.

Time Limit

The complainant submitted his complaint form to the Workplace Relations Commission on 19 April 2022.  The narrative on the complaint form contains information about two transactions.  The first transaction concerns an international wire transfer in October 2019.  The complainant in his evidence confirmed that he did not make a complaint about this transaction until January 2022.

The Equal Status Act provides the following in respect of redress:

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) …

(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.

There is a statutory time period set out in the above quoted legislation that requires a complainant to notify a respondent of the alleged prohibited conduct.  That period of 2 months may be extended to 4 months for reasonable cause shown.  The complainant in his evidence confirmed that his complaint about the first transaction was contained in a letter sent to the respondent over two years after the alleged prohibited conduct.  I am satisfied the complainant failed to comply with requirements of section 21 (2) (a) of the Acts.

Section 6 of the Acts contains a statutory time limit of 6 months within which a complainant may refer a claim for redress.  That time limit may be extended to a period not exceeding 12 months for reasonable cause shown.  The complainant in his evidence confirmed that he did not complain about the first transaction of October 2019 until January 2022.  I am satisfied that the complainant did not submit a complaint within the statutory time limit.  The statutory time limit may not be extended beyond 12 months from the date of the alleged prohibited conduct. 

I am satisfied the complainant has failed to comply with section 6 of the Acts by submitted his claim for redress about the alleged prohibited conduct concerning the transaction of October 2019 in April 2022, well outside the maximum statutory time limit.  In those circumstances I do not have jurisdiction to investigate or adjudicate on the complaint about the October 2019 transaction.

Incorrect Complainant

The allegation of prohibited conduct concerning the second transaction in January 2022 was notified to the respondent by letter dated 26 January 2022.  That notice complied with the requirements of section 21 (2) (a) of the Acts.  The complainant submitted his claim for redress to the Workplace Relations Commission on 19 April 2022, within the time limit contained in section 6 of the Acts. 

However, the alleged prohibited conduct refers transactions on accounts held by a person other than the complainant.  The complainant acknowledged that he is not the holder of the relevant accounts, but he claims that he was directly impacted by the action of the respondent in stopping the transaction. 

I have carefully considered the submissions of both parties and I am satisfied that the respondent was not engaged in providing a service to the complainant and was not requested to provide a service to him concerning the transaction in January 2022.  The service being provided concerned accounts held by a person who is not the complainant and who is not a party to this complaint.  I find the complainant does not have locus standi to bring the complainant about the January 2022 transaction.  Consequently, I cannot investigate and adjudicate on the complaint concerning the January 2022 transaction.

Selected ground of alleged discrimination

The complainant on the complaint form indicated that the ground on which he had been discriminated against was sexual orientation.  In his evidence the complainant stated that he made a mistake on the form and it was by human error that he had ticked the wrong box on the form.  He stated that his complaint was to do with discrimination against ethnic sounding/Muslim names.

I accept that the complainant made a genuine error when submitting his complaint form.  It is clear from the narrative on the form that the complaint had nothing to do with sexual orientation.

The respondent submitted that the ground selected cannot be altered at the hearing of the proceedings.  As I have found that I cannot investigate and adjudicate on either of the alleged discriminatory issues I do not have to decide this point.   However, I note that it is clear on the complaint form that the prohibited conduct complained about was set out in the narrative and the respondent was aware of the details of the complaints.

CA-00049751

Complaint submitted under section 21 of the Equal Status Acts.

Time Limit

The complaint submitted on 19 April 2022 concerned two transactions.  The first transaction was in October 2019 and the second in January 2022.

In respect of the October 2019 transaction, I am satisfied the complainant failed to comply with requirements of section 21 (2) (a) of the Acts.

Section 6 of the Acts contains a statutory time limit of 6 months within which a complainant may refer a claim for redress.  That time limit may be extended to a period not exceeding 12 months for reasonable cause shown.  I am satisfied that the complainant did not submit a complaint about the October 2019 transaction within the statutory time limit.  The statutory time limit may not be extended beyond 12 months from the date of the alleged prohibited conduct.  In those circumstances I do not have jurisdiction to investigate or adjudicate on the complaint about the October 2019 transaction.

Incorrect Complainant

I have carefully considered the submissions of both parties and I am satisfied that the respondent was not engaged in providing a service to the complainant and was not requested to provide a service to him concerning the transaction in January 2022. 

The service being provided concerned accounts held by a person who is not the complainant and who is not a party to this complaint.  I find the complainant does not have locus standi to bring the complainant about the January 2022 transaction.  Consequently, I cannot investigate and adjudicate on the complaint concerning the January 2022 transaction.

Discrimination

Time Limit

Locus Standi